From Noose to Needle: Capital Punishment and the Late Liberal State (Law, Meaning, and Violence)

From Noose to Needle Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging...

Author: Timothy Vance Kaufman-Osborn

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From Noose to Needle

Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates signaled by each of the words in the title. Those debates have taken place among and between lawyers, anthropologists, political theorists, sociologists, and historians, as well as literary and cultural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them. Series Editors:

Martha Minow, Harvard Law School Elaine Scarry, Harvard University Austin Sarat, Amherst College

Narrative, Violence, and the Law: The Essays of Robert Cover, edited by Martha Minow, Michael Ryan, and Austin Sarat Narrative, Authority, and Law, by Robin West The Possibility of Popular Justice: ACase Study of Community Mediation in the United States, edited by Sally Engle Merry and Neal Milner Legal Modernism, by David Luban Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control, by John Gilliom Lives of Lawyers: Journeys in the Organizations of Practice, by Michael J. Kelly Unleashing Rights: Law, Meaning, and the Animal Rights Movement, by Helena Silverstein Law Stories, edited by Gary Bellow and Martha Minow The Powers That Punish: Prison and Politics in the Era of the “Big House,” 1920–1955, by Charles Bright Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, edited by Peter Goodrich and David Gray Carlson Russia’s Legal Fictions, by Harriet Murav Strangers to the Law: Gay People on Trial, by Lisa Keen and Suzanne B. Goldberg Butterfly, the Bride: Essays on Law, Narrative, and the Family, by Carol Weisbrod The Politics of Community Policing:Rearranging the Power to Punish, by William Lyons Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick Whispered Consolations: Law and Narrative in African American Life, by Jon-Christian Suggs Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson Pain, Death, and the Law, edited by Austin Sarat The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn

From Noose to Needle Capital Punishment and the Late Liberal State

Timothy V. Kaufman-Osborn

Ann Arbor The University of Michigan Press

Copyright © by the University of Michigan 2002 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America c Printed on acid-free paper 2005

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No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Kaufman-Osborn, Timothy V. (Timothy Vance) ; 1953– From noose to needle : capital punishment and the late liberal state / Timothy V. Kaufman-Osborn. p. cm. — (Law, meaning, and violence) Includes bibliographical references and index. isbn 0-472-11291-0 (cloth : alk. paper) — isbn 0-472-08890-4 (pbk. : alk. paper) 1. Capital punishment—United States. 2. Capital punishment—Political aspects. 3. Hanging—United States. 4. Lethal injection (Execution)—United States. 5. Liberalism. I. Title. II. Series. hv8699. u5 k38 2002 364.66'0973—dc21

2002005407

Contents

List of Illustrations

vii

Acknowledgments

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Chapter 1. Introduction

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Chapter 2. What Is a Death Sentence?

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Chapter 3. John Locke’s Noose

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Chapter 4. The Metaphysics of the Hangman

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Chapter 5. Silencing the Voice of Pain

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Chapter 6. Womanhood Unsexed on the Gallows

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Chapter 7. Needling the Sovereign

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Notes

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References

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Index

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Illustrations

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William Heath, Merry England (1831)

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William Hogarth, The Idle ’Prentice Executed at Tyburn (1747)

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The new platform and gallows in the Old Bailey (1783)

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Allen Lee Davis, postelectrocution photograph (1999)

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Acknowledgments

As I have worked toward completion of this book, many friends and colleagues have offered helpful suggestions on various chapters. Although I worry that this list is incomplete, I would like to note in particular Paul Apostolidis, Jennifer Culbert, Julia Davis, Tom Davis, Christine DiStefano, Susan Ferguson, Renee Heberle, Mona Lynch, Jeannie Morefield, Dave Schmitz, Lynn Sharp, and Bob Tobin. For their perceptive comments, I also want to thank the students enrolled in the capital punishment seminar I taught at Whitman College during the spring semester of the 2000–2001 academic year. Absent Whitman College’s generous sabbatical leave program, I should add, I could not have finished this project in a timely fashion. I would be remiss if I were not to acknowledge the editors of the Law, Meaning, and Violence series, of which this volume is a part, and, more particularly, Austin Sarat, who first convinced me that I might have something of value to say about the politics of capital punishment. Also, from start to finish, it has been a delight to work with Jeremy Shine, editor for Political Science and Law, at the University of Michigan Press. I cannot guarantee that I have heeded each and every exhortation advanced by the two anonymous reviewers secured by Jeremy, but I can say with confidence that their commentary has made this a better book than it would otherwise be. I have also benefited a great deal from my continued association with the staff and board members of the American Civil Liberties Union of Washington. In addition to making available documents that otherwise would have been more difficult to come by, and putting up with my many questions about various legal technicalities, this group of dedicated civil libertarians and abolitionists has helped to nourish a constant give and take between my intellectual and political work. Over the course of the past half decade or so, my parents, Norman

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Acknowledgments

Osborn and Marjorie Phipps Osborn, have supplied a constant stream of newspaper clippings on every conceivable aspect of the death penalty; for their support, in all its forms, I owe a debt that will never be repaid fully. Finally, on more than one occasion, Sharon, Jacob, and Tobin Kaufman-Osborn have expressed concern about what they take to be my unseemly preoccupation with the politics of state killing and with death more generally. Absent their good cheer, as well as their steadfast refusal to discuss these matters at the dinner table, this fixation might indeed have grown worrisome. To Tobin, for decoding the Washington State Penitentiary’s instructions on noose tying; to Jacob, for feigning appreciation of my feeble efforts at gallows humor; and, to Sharon, for reasons she understands, I express my heartfelt gratitude. Several chapters of this book have previously appeared in somewhat different form and are used here with permission. Chapter 3 is a slightly revised version of “On the Rationalization of State Violence: Lockean Liberalism and the Noose,” in Studies in Law, Politics, and Society, vol. 22, ed. Austin Sarat and Patricia Ewick (Stamford, Conn.: JAI Press, 2001), 3–47 (© Elsevier Science, Inc.). Chapter 4 was first published as “The Metaphysics of the Hangman,” in Studies in Law, Politics, and Society, vol. 20, ed. Austin Sarat and Patricia Ewick (Stamford, Conn.: JAI Press, 2000), 35–70 (© Elsevier Science, Inc.). Chapter 5 initially appeared as “What the Law Must Not Hear: On Capital Punishment and the Voice of Pain,” in Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor: University of Michigan Press, 2001), 71–102. Finally, chapter 6 combines my introduction to the symposium “Gender and the Death Penalty” and my “Reviving the Late Liberal State: On Capital Punishment in an Age of Gender Confusion,” Signs 24, no. 4 (1999): 1097–1102, 1119–29 (© 1999 by The University of Chicago. All rights reserved).

Chapter 1

Introduction

Shortly after midnight, on January 5, 1993, Westley Allan Dodd was hanged in the death chamber of the Washington State Penitentiary, about a mile and a half west of my home. Although I did not realize it at the time, that event furnished the initial impetus for what is now this book. Before that date, to be perfectly candid, I had devoted little serious intellectual attention or political energy to the issue of capital punishment. However, as a member of the board of directors of the American Civil Liberties Union of Washington, I felt duty-bound to join the dozen or so grave protestors, primarily out-of-town Catholics and members of Amnesty International, who had gathered outside the penitentiary on that bitterly cold night in order to express their opposition to the first U.S. execution by hanging since 1965. About two hours after our arrival, nearly a hundred area residents appeared on the scene and were quickly corralled by armed state troopers and their German shepherds into the fenced-in enclosure labeled “For,” which was immediately adjacent to our pen, labeled “Against.” There, under the surreal twilight generated by the combined glare of penitentiary and television floodlights, the proponents of Dodd’s execution waved signs bearing slogans such as “Hang ’Em High”; chanted doggerel, including “What the heck, stretch his neck”; taunted those on the fence’s opposite side with dangling nooses; and, at precisely midnight, “lit fireworks and cheered like a football crowd at a home team victory” (Walla Walla Union-Bulletin, January 5, 1). The following morning, after praising state officials for their “quick” and “methodical” hanging of Dodd, the editorial staff of the Union-Bulletin branded the events outside the penitentiary “a disgusting spectacle” (January 5, 1993, 4); and, in 1996, after a second hanging at the same facility, urged the legislature in Olympia to shift to lethal injection as the state’s default method of execution, primarily on the grounds that this reform would discourage future dis-

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plays of the sort witnessed in 1993 and 1994, when “the nuts were out in force—on both sides of the issue” (February 7, 1996, 4). Shortly thereafter, the legislature obliged, and the governor concurred. Narrowly construed, the chapters of this book represent an attempt to gain some critical perspective on the events that transpired that night and thereafter, inside as well as outside the penitentiary. How, for example, was I to understand the visceral response provoked by this particular method of execution, especially given that, a little over a century prior, so I have been told by a local historian, the public schools of Walla Walla were sometimes closed so that parents could bring their children to witness hangings? How was I to reconcile the disgust I felt toward this event’s celebrants with my more generous response to the late-eighteenth-century crowds in England and France, which, according to Michel Foucault in Discipline and Punish (1979), often transformed executions into popular carnivals? In light of the public character of the vast majority of nineteenth-century executions in the United States, moreover, what was I to make of the fact that, as I began to do research into these questions, state officials ranging from the penitentiary superintendent to the head of the Department of Corrections in Olympia repeatedly refused my requests for a tour of the execution chamber, one of the last remaining gallows in the United States? And, once I did manage to gain access, how was I to think about the discourse of “humanitarianism” that was so often invoked by the superintendent in explaining his relief at the legislature’s switch from noose to needle? Finally, what was I to make of the incongruous situation of the hospital gurney on which Jeremy Segastegui was executed by lethal injection in 1998, the first by this method in Washington State, in a chamber designed for hanging and directly beneath the trapdoor through which Dodd’s body had plummeted five years before? In beginning to consider these questions, I found much of the available scholarship on capital punishment less helpful than I had hoped. With apologies for the caricature that follows, that literature may be said to fall into several general categories. First, perhaps most familiar is what might be called the “pro and con” scholarship (see, e.g., Radelet 1989; Paternoster 1991; Streib 1993; Haines 1996; Bedau 1997). Such policy-oriented work typically pits proponents against opponents of the death penalty, and their issues of contention include the morality of the death sentence, the legitimacy of retribution as a motive for pun-

Introduction

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ishment, the efficacy of capital punishment as a deterrent to homicide, the quality of legal representation for those sentenced to death, the relative expense of lifelong incarceration as opposed to execution, and so forth. Second, students of law continue to debate the specifically constitutional and legal issues posed by capital punishment (see, e.g., Coyne and Entzeroth 1994; Koosed 1996). This literature typically asks whether the death penalty is a form of cruel and unusual punishment, whether courts can ensure that death sentences are not influenced by discriminatory considerations, such as race, gender, and socioeconomic status, whether the erosion of habeas corpus protections in recent years makes it more likely that innocent persons will be executed, whether juveniles can demonstrate the sort of criminal intent necessary to render them subject to the death penalty, and so on. Third, and finally, a steady stream of books and articles in recent decades has explored transformations in the practice of capital punishment in Europe and the United States over the course of the past three centuries or so (see, e.g., Foucault 1979; Spierenberg 1984; Bowers 1984; Masur 1989; Linebaugh 1992; Gatrell 1994). Among other questions, this scholarship has inquired into the frequency of executions in different eras, the efforts of various groups to reform or abolish capital punishment, the conduct of crowds at public executions, the shift from open to concealed executions, the substitution of one method of killing for another, and so forth. It is this last body of scholarship that has proven most useful to me. That said, I come to this project not as a historian, but rather as a historically minded political theorist, and that is a perspective that has been more or less absent from contemporary work on the death penalty (see the essays in Sarat 1999b as well as Sarat 2001 for exceptions to this claim). To say that this is a work of political theory is, in this instance, simply to indicate my belief that the questions that have occupied my attention in recent years can be answered profitably by situating them within the context of a historically informed understanding of the liberal state and its distinctive dilemmas, primarily in the United States but also in England. My purpose, in other words, is to employ the issue of capital punishment to illuminate certain of that state’s more interesting quandaries and, to say much the same thing in reverse, to show how some of those quandaries are recapitulated in the conduct of capital punishment. The questions prompted by this perspective are, for the most part, simply more abstract versions of those with which I began:

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Why, for example, have certain methods of execution now come to be considered anachronistic, if not barbaric, and what does that judgment tell us about the imperatives of political rationalization in modern liberal political orders? How does the late liberal state, committed to the rhetoric of humanitarianism, seek to occlude the violence of state-sponsored killing, and what complications are engendered by the turn to quasi-medical technologies in order to achieve that end? Given that the legal order of that state can no longer justify the deliberate imposition of physical pain as a penalty, how can it offset the delegitimating effects induced by executions gone awry? How, to move farther from my point of origin, has the liberal state sought to negotiate its commitment to equality under the law, including equal application of capital statutes, within a culture informed by gendered stereotypes that often appear to immunize women from the law’s most severe punishment? The theoretical approach I have adopted in order to think my way through these and related questions will prove unsatisfying to those who possess greater epistemological confidence than do I. Because I do not believe that such an enterprise is either intellectually feasible or politically desirable, I offer no comprehensive theory of the liberal state. The very phrase liberal state is a reification that glosses over the historical transformations in the character of this complex entity and its dilemmas, transformations that I have signaled throughout this book via my imperfect references to the early modern, the modern, and the late liberal state. An examination of John Locke’s liberalism proves profitable in thinking about that state’s relationship to the practice of capital punishment during its formative centuries, especially as it seeks to secure its unambiguous demarcation from the tangled web of private powers that define late feudalism. While the Lockean conception does not become irrelevant once that demarcation is (more or less) secured, by the middle to late nineteenth century, it must be supplemented by categories derived from Max Weber if we are to appreciate the pressures brought to bear on the liberal state to rationalize (in his sense of this term) its monopoly over the means of legitimate violence. Yet Weberian categories too must be supplemented (but not entirely displaced) when we move to the late twentieth and early twenty-first centuries, and as the forces of globalization and what Michel Foucault calls “governmentalization” begin to render ever less tenable the Lockean distinction between public and private spheres as well as the Weberian

Introduction

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typification of the state in terms of its hegemonic disposition over the instrumentalities of authoritative force. The liberal state that is taking shape today, to quote from Wendy Brown’s States of Injury, “is both modern and postmodern, highly concrete and an elaborate fiction, powerful and intangible, rigid and protean, potent and without boundaries, decentered and centralizing, without agency, yet capable of tremendous economic, political, and ecological effects. Despite the almost unavoidable tendency to speak of the state as an ‘it,’ the domain we call the state is not a thing, system, or subject, but a significantly unbounded terrain of powers and techniques, an ensemble of discourses, rules, and practices, cohabiting in limited, tension-ridden, often contradictory relation with one another” (1995, 174). I concur, and I believe that the methodological precept that follows is a rejection of any monolithic theoretical perspective that claims to do perfect justice to the liberal state’s manifold history and forms. Accordingly, in the chapters that follow, I have drawn on an eclectic array of theoretical sources, including John Locke, Max Weber, Nicos Poulantzas, Friedrich Nietzsche, J. L. Austin, Michel Foucault, Judith Butler, Pierre Bourdieu, Elaine Scarry, and others. No more than with the liberal state, however, is my aim to provide definitive interpretations of these authors or to indicate their respective stances on capital punishment (which would be impossible in any event since several never expressly address this issue). From each of these authors, I have taken what I find valuable, and the remainder I have left behind (which means that, in some cases, I draw from a thinker in one chapter after criticizing him or her in another). Moreover, in order to insure that my appropriation of the conceptual categories of these thinkers does not stray too far from the gritty realities of capital punishment, which is too often the case in academic and especially legal discourse regarding this issue, in most of the chapters that follow I have constructed my argument around the interpretation of specific recent executions in the United States. In the chapter immediately following this introduction, titled “What Is a Death Sentence?” my aim is not so much to answer the question posed by my title, but to complicate it. In doing so, I hope to render problematic the liberal state’s effort to secure its legitimacy by neatly distinguishing between judge and executioner, between the pronouncement of a death sentence and its actual performance. The insta-

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bility of this distinction has recently become apparent in death penalty jurisprudence through the articulation of so-called Lackey claims, which ask whether the execution of a prisoner who has spent a protracted period on death row violates the Eighth Amendment’s prohibition again cruel and unusual punishment. To show how such claims threaten to compromise the distinction between capital punishment’s imposition and infliction, relying primarily on J. L. Austin’s analysis of performative utterances, I suggest that the issuance of a death sentence can be understood as a deed that is continuous with and indeed at least in part constitutive of the execution it commands; and I illustrate that argument through an account of the relationship between the words uttered by a Vancouver, Washington, judge in 1990 and the death by hanging of Westley Allan Dodd three years later in Walla Walla. The law of the liberal state, I conclude, cannot acknowledge the immanent relationship between word and deed, precisely because to do so would undermine one of the basic presuppositions that now legitimates the contemporary regime of capital punishment. In chapter 3, “John Locke’s Noose,” I tell in what I hope is a new way the story of the shift in London, between the sixteenth and the nineteenth centuries, from public hangings conducted at Tyburn Tree, to semipublic hangings conducted just outside Newgate prison, and, finally, to “private” hangings behind its walls. I use this account as a vehicle for reconsideration of a contemporary theoretical debate about the most apt characterization of the modern liberal state. For many, the characterizations of that state offered by Max Weber and Michel Foucault are fundamentally opposed. From the perspective of Foucault, some say, Weber represents the state as a privileged monopolist of the means of violence, and that in turn distracts inquiry from the web of extrastate disciplinary controls that render it an ever less significant locus of political power. From the perspective of Weber, some say, Foucault’s antipathy toward the state as an object of inquiry distracts attention from its coercive role in securing the order that is the political presupposition of the spread of various technologies of discipline. My aim in this chapter is to sidestep what I take to be this false antinomy by telling a Foucauldian tale about the technological and organizational history of a specific practice of governmental violence, that of hanging, but to do so in a way that demonstrates how transformations internal to that practice contribute to formation of a state that is well understood in qualified Weberian terms.

Introduction

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In chapter 4, “The Metaphysics of the Hangman,” I ask how we might make sense of the demise of what, until the twentieth century, was the predominant method of execution employed in the United States. To answer that question, I draw chiefly on the work of Friedrich Nietzsche and, more particularly, his relational ontology in order to abstract from the complex we call “the law” several of its key ingredients: specifically, legal discourse, legal subjects, and the technological instrumentalities through which the law’s imperatives are brought to bear on human bodies. The common contemporary characterization of hanging as a “barbaric relic,” I argue, signifies that these three ingredients no longer cohere in a way that consolidates the law’s claim to legitimacy. To illustrate the nature of this threat, I offer a reading of the evidentiary hearing that was conducted one year before the Ninth Circuit Court of Appeals rejected Charles Campbell’s challenge to hanging’s constitutionality. In that hearing, although never articulated in so many words, the key question is whether the noose can be rendered a fit participant within a legal order, which, in order to sustain its own claim to rationality, must efface the violence that is necessary to destroy a human body. While the noose survives this particular challenge, the strains internal to the legal argumentation that generates this conclusion indicate why it is unlikely that there will ever be another statesponsored hanging in this nation. In chapter 5, “Silencing the Voice of Pain,” I explore the representation of bodily suffering that predominates in most contemporary discourse concerning the infliction of capital sentences. That representation, I contend, is specifically modernist in a Weberian sense insofar as it figures pain as an aversive secular reality that is to be minimized or eliminated through the intervention of medical science; and it is also modernist in a Cartesian sense insofar as it regards pain as a solipsistic phenomenon whose reality can never be definitively confirmed by another. This anti-political construction, I argue, renders it virtually impossible to contest any particular method of execution on the grounds that the pain it entails violates the Eight Amendment’s prohibition of cruel and unusual punishment. To illustrate this claim, I explore the 1999 execution of Allen Lee Davis as well as the Florida Supreme Court case in which Davis figured centrally. More precisely, I indicate why, in spite of considerable visual evidence that appeared to suggest otherwise, those in dissent were unable to persuade the majority that Davis suffered any pain during his botched electrocution. In

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closing, I suggest that we might begin to temper the political incapacities of the modernist construction of pain by reconsidering the relationship between it and language. If pain were to be understood as a culturally variable and discursively fashioned artifact, might it then be possible to render its reality visible in a way that discloses the contestability of state power? In chapter 6, “Womanhood Unsexed on the Gallows,” I look into the little-explored topic of capital punishment and gender. To establish a context for my primary argument, I begin by offering a brief history of women and the death sentence in the United States as well as an abbreviated account of the principal academic controversy concerning the most adequate explanation for the relatively small number of women who have been executed. In the second section, using the 1998 execution of Karla Faye Tucker to illustrate, I explain why I am persuaded that the contemporary liberal state is damned if it does and damned if it doesn’t execute women. From one point of view, the statesponsored killing of an occasional woman reinforces the liberal ideal of equality before the law, and that in turn helps to reinforce its appearance of legitimacy. Yet, at the same time, the execution of women disturbs other tales to which many in this culture are also profoundly committed. Specifically, to direct the lethal force of the state against a woman is to accentuate the harsh realities of capital punishment by bringing that violence to bear on a body conventionally coded as docile, as nonpredatory, as in need of protection. How the late liberal state in America can be expected to muddle through this dilemma is the subject of my closing remarks. In chapter 7, titled “Needling the Sovereign,” I ask, first, how we might make sense of the contemporary adoption of lethal injection as our preferred technology of state killing and, second, whether this method effectively solves any or all of the dilemmas explored in the previous chapters. To suggest why lethal injection raises more questions than it answers, I explore a 1985 U.S. Supreme Court case in which several inmates sentenced to die by lethal injection contended that, because the Food and Drug Administration had not determined that the drugs in question were “safe and effective” when employed to kill human beings, their execution by this method would be unlawful. To make sense of this paradoxical contention, as well as the conditions of its possibility, I turn back once again to Foucault and, more specifically,

Introduction

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to the first volume of his History of Sexuality (1980a) as well as his essay titled “Governmentality” (1991a). In contrast to absolutist regimes, which were paradigmatically defined by the authority of the sovereign to put subjects to death, late liberal regimes are in large part defined by a commitment to what Foucault sometimes calls “bio-politics,” that is, the nurturance of healthy and docile populations in the service of maximal productivity. A perhaps nonobvious consequence of that commitment, I argue, is the rationalization and, more specifically, the medicalization of death; and one manifestation of that in turn is adoption of the execution method that is lethal injection. The fact that this technique does not appear to cause pain and leaves no visible signs of harm on the body of the condemned might lead us to conclude that it successfully overcomes the dilemmas that have now led to the virtually complete rejection in the United States of all other execution methods, including hanging, electrocution, the firing squad, and the gas chamber. In fact, however, it is lethal injection’s apparent excision of the violence of killing from infliction of the death penalty that renders it unable, I argue, to reconsolidate the claim to sovereign authority that is essential to the identity of the liberal state. As such, the very success of lethal injection is the cause of its failure. This volume contains no separate conclusion, in part because its chapters are not intended as co-constitutive parts of some more comprehensive single argument, and in part because its conclusion, to the extent that it has one, is stated in each of its chapters. If the practice of capital punishment is as riddled with contradictions as each of my chapters suggests; and if lethal injection, as I suggest in the last chapter, simply poses new dilemmas for the late liberal state; and if those dilemmas, as I also contend, can be “solved” only when executions are botched in a way that renders their violence palpable; and if graphically violent executions in turn undermine the late liberal state’s already attenuated legitimacy, then it would appear to follow that this political institution is beyond repair. Does that mean that capital punishment is destined to disappear in the United States? When I first started working on this project in 1995, I had little reason to think that its days might be numbered. Today, and although I am not given to the intellectual conceit that holds that the contradictory nature of a political practice necessarily leads to its elimination, I am not so sure. In 1997, the American Bar Association’s House of Delegates

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adopted a resolution (Report with Recommendation No. 107, ABA 1997 Midyear Meeting, adopted on February 3, 1997) calling on states to halt executions until equal protection of the law can be guaranteed to all. In 1998, the execution of Karla Faye Tucker prompted a national debate, especially among members of the Christian Right, about the morality of capital punishment (Verhovek 1998a and Malcolm 1999). In 1999, the Nebraska legislature approved a two-year moratorium on executions, which was later vetoed by the governor (Johnson 1999). In the first month of 2000, after thirteen men on death row were exonerated by new evidence, Governor Ryan of Illinois suspended all executions pending a formal review of capital trials in that state (Johnson 2000); and, later that same year, although thwarted by another gubernatorial veto, the New Hampshire legislature voted to abolish the death penalty, the first state to do so since the United States Supreme Court authorized the resumption of executions twenty-five years ago (Kifner 2000). Still more recently, Columbia University issued a study indicating that, of 4,578 death sentence appeals conducted from 1973 to 1995, two-thirds were successful in state or federal courts, largely due to incompetent defense counsel, mendacious police officers, and/or prosecutors whose zeal outstripped their fidelity to the law (Masters 2000); and, shortly thereafter, the U.S. Justice Department released another indicating significant racial and geographical disparities in the federal death penalty system (Vise 2000), although Attorney General John Ashcroft later denied that this study demonstrated the presence of any intentional bias in the administration of capital punishment (Stout 2001). The cumulative effect of these and other developments was registered in a Washington Post–ABC poll conducted in April 2001. Leaving aside what has come to be known as the “McVeigh exception,” this survey indicated that overall support for capital punishment has fallen from 80 to 63 percent since 1994; and that nearly half of all Americans would now abandon executions altogether if given a reliable option of life imprisonment without parole (Morin and Deane 2001). On the basis of such evidence, it is tempting to predict, as Robert Jay Lifton and Greg Mitchell recently did, that, “before long, the death penalty apparatus in our country will collapse under its own moral, psychological, and eventually political weight” (2000, 231). That prognostication, though, may be so much wishful thinking. If support for capital punishment has waned in recent years, this is not so much

Introduction

11

because new abolitionist arguments have been articulated and widely accepted, but because of the publicity afforded to individualized stories of capital defendants represented by sleeping, intoxicated, and/or disbarred attorneys, of persons on death row proven innocent by undergraduate journalism students at Northwestern University, of exonerations of the condemned on the basis of DNA testing, and so on. Woven together, these stories have loosened the grip of conventional narratives in favor of the death penalty, which told of disingenuous lawyers manipulating legal technicalities in order to postpone indefinitely the execution of coddled criminals, and thereby created space for a new, more skeptical narrative, which worries about whether possibly innocent persons are being hustled toward the death chamber by officials who, like too many government bureaucrats, are prone to corruption and slipshod work. While the impact of these stories in shaping public opinion is not to be minimized, it may be that these tales are better suited to generate support for a moratorium on the death penalty than for its wholesale abolition. “There is no inconsistency,” write Samuel Gross and Phoebe Ellsworth, “in the fact that 64% of the population favors a moratorium (at least when DNA is mentioned), and about the same number favors the death penalty” (2001, 53). A moratorium, while attractive as a way of breaking the rhetorical impasse that materializes when persons, absent a third alternative, feel compelled to choose between unvarnished support for or opposition to capital punishment, is ultimately a strategy of deferral. As such, it may simply elicit additional efforts to do what legislatures and courts have been trying (unsuccessfully) to do since the U.S. Supreme Court lifted its temporary ban on executions in 1976, that is, to rationalize the administration of capital punishment in a way that rectifies its most troubling and glaring defects. And, if that is so, then it is not inconceivable that, in the long run, the moratorium movement may play into the hands of those who now seek to exploit the gains secured by the Federal Death Penalty Act of 1994 (Pub. L. No. 103-322, 108 Stat. 1959), which made some sixty additional categories of crime, such as major narcotics trafficking, subject to the federal death penalty, and, far more important, by the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104–132, 110 Stat. 1214), which reduced the power of federal courts to review the fairness of state capital prosecutions. In addition, support for a moratorium may vanish as

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quickly as it has arisen, especially should the American economy experience a significant downturn or should crime rates take a marked upturn, in which case killing the despised will almost certainly reemerge as a potent strategy for deflecting attention from more systemic ills. Such skepticism aside, the fact remains that we now stand at a remarkably volatile moment in the history of capital punishment in America. Whereas just five or six years ago, the death penalty appeared so firmly entrenched that it required no explicit defense against its marginalized opponents, today it appears vulnerable and so in need of justification. Perhaps, then, the optimistic forecast offered by Lifton and Mitchell (2000) is correct, although I am by nature too cautious to hazard such a prediction in print. What I am willing to say is that, if and when what Justice Harry Blackmun called the “machinery of death” (Callins v. Collins, 510 U.S. 1141 [1994]) is dismantled, that accomplishment will signify an important reconfiguration of the way we think about and do politics in the United States. The imposition and infliction of a death sentence entails what John Leonard calls a claim to “the authority of perfect knowledge in final things” (quoted in Lifton and Mitchell 2000, 240). Affirmation of such authority is inconsistent with liberalism’s commitment to the establishment of inviolable limits on state power, and it is inconsistent with democracy’s presupposition of the fallibility of all human judgment. To strip the state of that authority is to move one step closer to a politics we can live with.

Chapter 2

What Is a Death Sentence?

On May 20, 1997, after spending seventeen years on death row in Texas, Clarence Allen Lackey was executed by lethal injection. Two years before, Lackey had sought review of his sentence by the U.S. Supreme Court on the grounds that his execution following such a lengthy incarceration would violate the Eight Amendment’s prohibition of cruel and unusual punishment. In dissenting from the Court’s denial of Lackey’s petition, Justice Stevens suggested that the question of whether an execution conducted after such an extended delay would still advance the purposes of retribution and deterrence deserved examination by state and lower federal courts. It is at least arguable, Stevens wrote, that “the acceptable state interest in retribution has been satisfied by the severe punishment already inflicted,” and hence that execution following such protracted incarceration would exceed what is necessary to fulfill its claims. Moreover, “the additional deterrent effect from an actual execution now, on the one hand, as compared to seventeen years on death row followed by the prisoner’s continued incarceration for life, on the other, seems minimal” (Lackey v. Texas, 115 S. Ct. 1421 [1995], 1421).1 One year after Lackey was executed, dissenting from the Supreme Court’s refusal to review a similar claim advanced by William Elledge (Elledge v. Florida, 119 S. Ct. 366 [1998]), and then again in 1999 in the cases of Thomas Knight and Carey Dean Moore (Knight v. Florida, 120 S. Ct. 459 [1999]), Justice Breyer argued that, because “these cases involve astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures” (Knight v. Florida, 120 S. Ct. 459 [1999]); and because courts in several other nations (India, Jamaica, and Zimbabwe, for example) as well as the European Court of Human Rights have concluded that extended delay prior to execution constitutes cruel and unusual punishment; and, finally, because considerable 13

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evidence indicates that many inmates on death row suffer from depression, suicidal tendencies, and sometimes insanity, the nation’s highest court should now address this question. Without exception, since 1995, when Lackey was denied review, lower courts in the United States have found the claims that now bear his name to be without merit.2 While more polemical than most, the general thrust of these rejections is expressed well by Justice Luttig, of the Fourth Circuit Court of Appeals: It is a mockery of our system of justice, and an affront to law-abiding citizens who are already rightly disillusioned with that system, for a convicted murderer, who, through his own interminable efforts of delay and systemic abuse has secured the almost-indefinite postponement of his sentence, to then claim that the almostindefinite postponement renders his sentence unconstitutional. This is the crowning argument on behalf of those who have politicized capital punishment even within the judiciary. With this argument, we have indeed entered the theater of the absurd, where politics disguised as “intellectualism” occupies center stage, no argument is acknowledged as frivolous, and common sense and judgment play no role. And while this predictable plot unfolds with our acquiescence, if not our participation, we lament the continuing decline in respect for the courts and for the law. (Turner v. Jabe, 58 F. 3d 924 [1995], 933)3 Expressly citing this quotation in explaining his rejection of Breyer’s argument for review of the claims advanced by Knight and Moore, and after reciting the various cases in which “Lackey claims” have been rejected by state and lower federal courts, in 1999, Clarence Thomas urged his fellow justices on the Supreme Court to “consider” this “experiment concluded” (Knight v. Florida, 120 S. Ct. 459 [1999]). My concern in this chapter is not with the specifically constitutional question of whether extended incarceration as a preface to execution does or does not violate the Eighth Amendment. What does concern me can be intimated by asking why the rejection of this argument by Justice Luttig (and, by implication, by Justice Thomas) is so vituperative. How exactly does such a claim “mock” our system of justice? How does judicial consideration of this argument foster a “decline in


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respect for the courts and for the law”? How do “Lackey claims” serve to “politicize” capital punishment? Is it possible, as I contend in this chapter, that these claims can be given their due only at the risk of calling into question the legitimacy of a liberal legal order, and that it is this risk that explains the vehemence with which they are so often rejected? One way to answer these questions is to note how “Lackey claims” effectively highlight what may well be an irreconcilable conflict in contemporary capital punishment jurisprudence. As interpreted by the Supreme Court in Gregg v. Georgia in 1976, the Fourteenth Amendment requires a “meaningful appellate review” in order to insure that death sentences are not “imposed capriciously or in a freakish manner” (428 U.S. 153 [1976], 195). One result of this due process requirement is an increase in the average length of incarceration on death row prior to execution (currently about ten years). If, as a result of a successful “Lackey claim,” such extended incarceration were to be deemed a violation of the Eighth Amendment, then courts would find it necessary to choose between violating the Fourteenth in order to satisfy the requirements of the Eighth, or vice versa. Arguably, it is just this sort of contradiction that might in time press the Supreme Court to ask whether the practice of capital punishment can be ever conducted in a way that comports with the U.S. Constitution. Another possible way to answer these questions, one that edges closer to my topic of concern here, is to note how “Lackey claims” threaten to complicate death penalty jurisprudence by rendering constitutionally salient the question of psychological suffering. As I show in my chapter on the electrocution of Allen Lee Davis, for the most part, in dealing with capital punishment cases, contemporary U.S. courts have construed pain in narrow physicalist terms; doing so, they render pain radically solipsistic and, in consequence, virtually impossible to make verifiably real in the eyes of the law. Claims of the sort advanced by Lackey, however, point to pain that takes the form of mental anguish caused by anticipation of one’s imminent death. For example, when the California Supreme Court declared that state’s death penalty statute unconstitutional more than two decades prior to Lackey v. Texas, it concluded that the “cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due

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process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture” (People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880 [1972], 894–95). If incarceration prior to execution is indeed a form of “torture,” then we must acknowledge that it is possible for the state to injure without leaving any trace in the flesh of those hurt; and that, by casting doubt on the mind/body dualism that buttresses most contemporary capital punishment jurisprudence, might dramatically expand our conception of what counts as constitutionally impermissible harm. Even that, though, is not quite my concern in this chapter. Anticipating his claims in Lackey, in 1981, Justice Stevens wrote: “If the death sentence is ultimately set aside, or its execution delayed for a prolonged period, the imprisonment during that period is nevertheless a significant form of punishment” (Coleman v. Balkcom, 451 U.S. 949 [1981], 952). To the extent that this is so, it becomes more difficult to represent incarceration prior to execution as a mere means, which, as such, is categorically distinct from the judicially mandated punishment of death. If, in fact, incarceration is an immanent part of the punishment imposed on one sentenced to death, if imprisonment on death row is a sort of living death that culminates in, but is not neatly distinguishable from, the act of execution proper, then in some important sense the pronouncement of a death sentence is itself an act of violence and the speaker of that sentence, a judge, is its agent. That, though, cannot be; for, as we were all supposed to learn in high school civics, liberal political orders are predicated on a functional distinction between those who make the law, those who adjudicate violations of that law, and those who execute the law’s sentences. The task of this chapter, accordingly, is to explore this conundrum, first, by reminding readers why and how, in accordance with the imperatives of liberal political doctrine, the pronouncement of a death sentence is distinguished from its actual infliction; and, second, by indicating how this demarcation can be rendered problematic by considering the sense in which a death sentence is, to invoke a category invented by J. L. Austin, a performative utterance. To illustrate this argument, although any other capital case culminating in a sentence of death would suffice equally well, I consider the conviction, sentence, and execution of Westley Allan Dodd in a Washington State penitentiary in 1993.


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Judge, Jury, and Executioner What is wrong with this picture? (fig. 1). Commissioned by several radical booksellers in London, and designed to protest the government’s response to the Captain Swing uprising of 1830, Heath’s Merry England is politically scandalous at least in part because of its conflation of the roles of judge and executioner. Doing so, it effectively undoes the haphazard but cumulative processes by means of which judges throughout Europe, beginning in the early years of the fifteenth century, extricated themselves from the actual infliction of violence. As Markus Dubber (1996) explains, in medieval Germany, the class of judges known as scabini liberi imposed sentences on malefactors and then executed them as well. In Amsterdam, until well into the eighteenth century, judicial magistrates would tell executioners precisely when to administer the final blow to those condemned to die on the wheel. Even after the conduct of capital sentences was moved behind the walls of penitentiaries, which occurred in most Western nations during the nineteenth century, trial court judges were often required by statute to witness execution of the sentences they had imposed. Today, however, with few exceptions, the occasional judge who attends a U.S. execution does so in the capacity of a spectator who has no official role in the matter at hand:4 “By separating the private infliction of punishment behind impenetrable prison walls from its public imposition in a court of law under judicial supervision,” summarizes Dubber, “the modern system of punishment restricted the judge’s participation in the system of punishment to its imposition and relieved him of his participation in its infliction” (1996, 552).5 Heath’s print compromises, indeed obliterates, the disjunction between punishment’s imposition and infliction; and it does so in a way that is arguably fatal to the law’s legitimacy. Violence is an essential moment within the law, argues Austin Sarat (1995), in at least three ways: “(1) it provides the occasion and method for founding legal orders; (2) it gives law (as the regulator of force and coercion) a reason for being; and (3) it provides a means through which law acts” (1111–12). However, in order to maintain its legitimacy, the law must either deny its complicity with violence or, when that proves impossible, secure a strict line of demarcation between its own violence and that which it punishes:

Fig. 1. Merry England, by William Heath (1831). (Copyright © The British Museum.)


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Violence stands before the law, unruly; it defies the law to protect us from its cruelest consequences. It demands that law respond in kind, and requires law to traffic in its own brand of force and coercion. It is thus that point of departure from which complete departure is impossible. It is the task of law and of much legal theory to insist, nonetheless, on the difference between the force that law uses and the unruly force beyond its borders. Legal theorists name the superiority of the former by calling it legitimate. (Sarat and Kearns 1995, 212) The need to manufacture this distinction and then police the border dividing each form of violence from the other proves all the more pressing when the law commands the irrevocable form of harm that is an execution.6 If capital punishment is to be something other than what Albert Camus (1968) called an “administrative assassination” (138), if it is to be something other than an unthinking expression of what Justice Potter Stewart, in Furman v. Georgia, called “the instinct for retribution” (408 U.S. 238 [1972], 308),7 the law must assiduously distinguish its acts of killing, delineated in terms of their rationality, their fairness, their humaneness, from those constructed in terms of their irrationality, their unpredictability, their cruelty. How is this end to be accomplished? Consider the representation of judges in capital trials as passive agents doing the bidding of an impersonal system of law. That representation, which distinguishes the law’s violence from that animated by personal vengeance or private gain, is the unstated premise of Justice Rehnquist’s citation of a quotation he attributes to a certain Judge Parker: “I never hanged a man. It is the law” (Coleman v. Balkcom, 451 U.S. 949 [1981], 962).8 Relatedly, consider the practice of using various metonymic forms (e.g., court or bench) to refer to judges. Such usage suggests that the rulings of judges are as impersonal as is the law they apply; and that appearance is still more effectively manufactured when judges, in addition to distancing themselves from punishment’s infliction, can dissociate themselves from its imposition by presenting themselves as detached servants of jurors who, in the last analysis, determine who is to live and who is to die.9 Next, consider the American judiciary’s commitment to what Margaret Radin has dubbed “super due process” (1980) in capital cases. To cite but one example, the

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requirement of bifurcated trials, carefully segregating the determination of guilt or innocence from the determination of punishment, makes clear how scrupulous the law is, unlike those accused of capital crimes, when it comes to extinguishing life.10 Finally, consider the shift of virtually all states that retain the death penalty to the method of lethal injection, which, in virtue of its similarity to a scientifically rational medical procedure, also distinguishes the state’s modus operandi from the less refined ways typically employed by nonstate actors. Each of these devices occludes the law’s entanglement with violence by helping to sustain the distinction between its illegitimate and legitimate forms. Although each is worthy of careful analysis, of greater concern to me in this chapter is that which is suggested when we ask how Heath’s drawing might be “fixed.” To do so, it seems clear, we must first remove the judicial wig from the gallows and place it back atop a judge in the circumscribed space that is a courtroom; and, second, we must endeavor to maximize the distance between gallows and courtroom. This latter end, argues Dubber, is presently achieved through the proliferation of what he calls “responsibility-shifting mechanisms.” In asking how we collectively manage to evade “the central problem of modern punishment since the enlightenment,” that of “justifying the infliction of punitive pain on a fellow human being” (1996, 545), Dubber suggests that [t]he capital punishment system has evolved into a complex sequence of tasks, each of which is assigned to a different participant and all of which are necessary, but none of which is sufficient, to inflict the death penalty on a given person. . . . Complementing this personal distribution of responsibility, a temporal distribution of responsibility has become crucial to the American system of capital punishment. Participants shift responsibility not only onto other participants but also onto earlier or later events in the process. The delay separating imposition and infliction of capital sentences, which has attracted the ire of death penalty proponents, therefore in fact helps maintain the capital punishment system by permitting its participants to shift responsibility onto an occurrence in the comfortable future (in the case of those who impose the death sentence) or in the comfortable past (in the case of those who inflict it). (547)


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The “responsibility-shifting mechanisms” analyzed by Dubber do not merely separate punishment’s imposition from its infliction. They also accomplish the internal fragmentation of each of these two moments into a “myriad of tasks and sub-tasks and sub-sub-tasks” (565). For example, at the infliction end, Dubber shows how the Missouri lethal injection protocol assigns discrete tasks to, among others, the nurse who inserts the IV, the doctor who monitors the EKG, the exterior door operator, the deputy director who maintains a telephone line to the attorney general, the psychologist who attends to the condemned’s mind, the chaplain who ministers to his or her soul, the guard who operates the blinds on the windows between the death chamber and the witness room, and so forth and so on. At the imposition end, prosecutors represent themselves as agents who seek but do not determine the death sentence, jurors represent themselves as citizens who simply do what the law requires, judges represent themselves as officials who merely do the bidding of jurors, and all know that their efforts are merely provisional given the state and federal appeals that invariably follow any given death sentence’s pronouncement. In a way, given the success of the contemporary system of capital punishment in distancing wig from gallows, and then deconstructing each into so many distinct pieces, it’s a wonder that the statement of a death sentence ever culminates in the production of a dead body. The most obvious way to explain this accomplishment is to trace out the network of bureaucratic connections, the chain of command, traveling between and so linking courtroom and death chamber. That, I take it, is what Robert Cover means to indicate when he writes: The judge in imposing a sentence normally takes for granted the role structure which might be analogized to the “transmission” of the engine of justice. The judge’s interpretive authorization of the “proper” sentence can be carried out as a deed only because of these others; a bond between word and deed obtains only because a system of social cooperation exists. The system guarantees the judge massive amounts of force—the conditions of effective domination—if necessary. It guarantees—or is supposed to—a relatively faithful adherence to the word of the judge in the deeds carried out against the prisoner. (1986, 1619)11

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But is this way of construing the relationship between wig and gallows entirely adequate? Cover’s metaphor of the engine transmission implies that word and deed are distinguishable sorts of entities, just as are the transmission shaft and the crankshaft in a fluid or friction clutch, and that the link between the two is mechanical in the sense that the execution proper, the deed, is not in any meaningful sense immanent within the imposition of that sentence, the word. That, I take it, is the presupposition of his claim that “judges do not ever kill the defendants themselves,” and hence that they must “set in motion the acts of others which will in the normal course of events end with someone else killing the convicted defendant” (1622).12 The task of this chapter, however, is to suggest that word and deed, imposition and infliction, sentence and execution, cannot be separated quite so neatly, and that any analysis that presupposes their categorical distinguishability, as does Cover (sometimes), will fail to understand what William Heath and Clarence Lackey intuitively grasped about the conditions of a liberal legal order’s legitimacy and so what threatens that legitimacy as well. Performing a Death Sentence On November 15, 1989, in Vancouver, Washington, Westley Allan Dodd was charged with the crime of aggravated first-degree murder of four-year-old Lee Iseli and William and Cole Neer, ages ten and eleven, respectively. In June of the following year, Dodd changed his initial plea to guilty on all counts; and, one month later, a special sentencing proceeding was convened. The twelve members of the jury impaneled for this purpose were not asked, in so many words, whether Dodd should die. Rather, they were asked: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” (Revised Code of Washington 10.95.060 [4]).13 Washington state law mandates that if all members of a jury answer this question in the affirmative, as they did in Dodd’s case, “the defendant shall be sentenced to death” and the “trial court may not suspend or defer the execution or imposition of the sentence” (RCW 10.95.080 [11]). Following the jury’s submission of a Special Sentencing Verdict form, its determination was announced by Clark County Superior Court Judge Robert Harris; and, twelve days later, on July 26, after


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stating that he did not believe that “continuation of the story of Westley Allan Dodd serves a purpose” (Snell 1990, 23), Harris signed a Judgment and Sentence form, which “ordered that the defendant be punished by death” and, to that end, “commanded” the sheriff of Clark County “to take and deliver the defendant to the Washington State Penitentiary in Walla Walla.” Two and a half years later, in Walla Walla, after the state supreme court completed its mandatory review, affirmed the original sentence, and remanded the case to the Clark County Superior Court for issuance of a death warrant, an unnamed official secured a noose around Dodd’s neck, placing the knot snugly behind his left ear. At the press of a pedal, the automatic trapdoor on which he stood sprang open, plunging his body into the lower half of a split-level execution chamber. Falling exactly seven feet and one inch, the distance deemed necessary to transect his spinal cord by dislocating his uppermost cervical vertebra, Dodd died before sixteen witnesses seated on the far side of a plate glass window. Although the exact cause of death, an autopsy later revealed, was not the so-called hangman’s fracture, but rather a combination of nerve damage and strangulation, he expired with no visible sign of distress. “Surgical precision” (Walla Walla Union-Bulletin, January 11, 1993, 1), declared one observer, marked the affair from beginning to end, and so, on January 5, 1993, at 12:09 A.M., the “story” of Westley Allan Dodd came to an end. How are we to think about the relationship between Judge Robert Harris’s imposition of a death sentence on July 26, 1990, and Westley Allan Dodd’s execution on January 5, 1993, between the signing of a Judgment and Sentence form in a courtroom on the west side of Washington and the coroner’s certification of Dodd’s death on its east side? To answer this question, and to do so in a way that indicates the inadequacy of any account of the interconnection between sentence and execution that is parasitic on an untenable distinction between word and deed, a distinction that serves all too well the interest of the judiciary in disjoining sentence from execution, I appropriate J. L. Austin’s category of performative utterance. Austin’s primary concern is with utterances, which, when spoken, accomplish a deed through the very conduct of their enunciation.14 His preferred examples include the making of a promise (which creates a moral obligation that was previously absent); the taking of wedding vows (which brings into being a legal relationship that did not hitherto

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exist); and the christening of a ship (which gives this vessel a name it lacked till now). Utterance of the words that accomplish these ends does not describe an antecedent reality in a way that can be deemed true or false. When I say, “I do,” for example, I am not offering a characterization of what I am doing, one that might be contested on the grounds that it is inaccurate to the facts of the matter. Rather, when done under the appropriate circumstances (e.g., in the presence of an official authorized by the state to perform wedding ceremonies and in accordance with the verbal conventions regulating the conduct of such ceremonies), this utterance performs the action named, in this case, the taking of a marital vow. Like the rule-governed moves in a chess game, each of which refashions the relationship among its players, the speaking of these words in a prescribed manner creates a reality that did not exist before they were uttered. At the close of “Performative Utterances” (1970), Austin suggests the need to amplify his account by elaborating a distinction between what an utterance means and what its force is: “We may be quite clear what ‘Shut the door’ means, but not yet at all clear on the further point as to whether as uttered at a certain time it was an order, an entreaty or whatnot” (251). As noted above, when considering performative utterances, language is not referential in the conventional sense whereby statements are taken to be mimetic reflections of the antecedently real. When I command you to “shut the door,” my utterance does not derive its sense as an order by pointing to, by making reference to, something apart from that utterance itself. Granted, the presence of a door may be a condition of this utterance’s intelligibility, but it certainly does not exhaust its sense. For, in this case, the meaningful referent, the order qua order, is produced by the utterance as its own effect. The force of a performative utterance, considered as a deed, is therefore always in excess of its meaning, construed in representationalist terms. In his How to Do Things with Words (1962), Austin develops this insight by distinguishing between utterances construed as locutionary, illocutionary, and perlocutionary acts. To illustrate these terms using a modified version of an example from Austin’s text, consider this hypothetical incident of extrastate violence:15 Two thugs, one menacing and the other somewhat less so, stand on either side of a man who has failed to make good on his gambling debts. The first turns to the second and says, “Shoot him.” The second, after some hesitation, raises a pistol and


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kills the hapless debtor. Shortly after having read Austin’s posthumous text, I observe this event. In my capacity as witness, I describe what I saw to the police: “The first man said to the second, ‘Shoot him,’ meaning by ‘shoot’ to fire a gun and by ‘him’ to refer to the deceased.” This statement more or less captures what Austin calls the locutionary act, that is, it describes the meaning of the statement’s terms in relation to one another. But, my philosophical sensibilities primed, I soon realize that this does not exhaust what transpired via this utterance; and so I explain to the police that the second man wavered, and hence that he must have been persuaded by the words of the first to commit this deed. This expresses what Austin calls the “perlocutionary” act, that is, it provides an account of the consequences that are set in motion by this verbal deed. And yet, I explain to the now exasperated officers, there is still more to this utterance, for I have yet to capture the sense in which it was itself an action. Specifically, when the first man said, “Shoot him,” he ordered the second to do so. Although that utterance may indeed have set in motion the train of actions that led to the debtor’s death, it was also a deed in its own right; and that is what Austin labels the “illocutionary” act. A bit too neatly, we might sum up the distinction between these last two senses of the performative, as does Austin, by saying that the illocutionary act is the deed performed in saying something, whereas the perlocutionary act is the deed performed by saying something. What might we learn by considering a death sentence in light of Austin’s analysis of performative utterances? What exactly is it that a death sentence does? To take an initial step toward answering these questions, let us ask in what sense the force of a death sentence is illocutionary; or, better still, let us first ask in what sense it is not. Imagine that Judge Harris is akin to the God of Genesis, that incredible entity whose words are sufficient to call a world into being. Now imagine that at the precise moment when Harris concludes his enunciation of Dodd’s penalty, as an unseen period brings this sentence to a close, the latter falls dead on the spot, a corpse displaying no visible signs of the violence necessary to accomplish this end. On this account, the death sentence is an illocutionary act in the sense that its mere articulation is sufficient to accomplish, to make palpably real, its import. So construed, Judge Harris’s utterance is not unlike hate speech or, alternatively, what the Supreme Court, in Chaplinsky v. New Hampshire (315 U.S. 568 [1942]), dubbed “fighting words,” that is, words that are

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“experienced as a blow” and so “by their very utterance inflict injury” (572). What distinguishes the death sentence from mere fighting words, on this construction, is the fact that it issues from a judge who, in his capacity as officer of the sovereign state, has the ability as well as the authority not merely to wound but to kill via his utterances. His voice is the source of the agency that abolishes the distinction between wig and gallows. This, obviously, will not do as an account of the illocutionary force of the death sentence qua performative utterance. The failure of this version, however, should not lead us to conclude that a death sentence bears no force of this sort. When Westley Allan Dodd stands before Judge Robert Harris on July 26, 1990, prior to the formal act of sentencing, technically speaking, he is guilty but not yet condemned. After that act, he is both; and, in that sense, much like a promise that creates an obligation that had no existence prior to its utterance, the death sentence is a performative whose enunciation does what it says and, in so doing, creates its own referent. How are we to explain the capacity of this utterance to produce such a transformation? What are the conditions of the exercise and efficacy of such power? Is that power entirely resident within the speech act itself? According to Austin, the illocutionary force of any given performative is conditional upon the existence of what he typically calls a convention (although he sometimes augments this term by invoking the terms ritual and ceremonial). The utterance “I promise” will bring nothing into being absent an antecedent convention, a commonly accepted practice, of promising. Relatedly, where a convention already exists but a performative is not uttered in accordance with its stipulations, it will not accomplish its end. For example, if Judge Harris encounters me in the streets of Walla Walla and, irked by my refusal to grant his words the status of a divine performative, sentences me to death, his utterance will be of no account, for it will not have been invoked, as it must, in a court of law. So, too, should Judge Harris’s mother, seeking to avenge the affront to her son, declare, “I sentence you to death,” even though we are both in a court of law, this performative will also be void, for it will not have been invoked, as it must, by a party authorized to do so. In both cases, these acts are, to use Austin’s term, infelicitous and, as such, without force. These two hypotheticals, but especially the latter, suggest a point


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that, according to Pierre Bourdieu (1991), Austin does not adequately appreciate. Austin is to be commended, Bourdieu acknowledges, for identifying the category of performative utterances and so calling into question any facile opposition between words and deeds. However, because he does not go beyond an ill-defined appeal to “convention” in explaining the efficacy of performatives, too often Austin is inclined to analyze their logic in formal linguistic terms and, in doing so, to leave untheorized the structured relations of power that afford them their force. To remedy this deficiency, Bourdieu argues that the illocutionary efficacy of any given performative is contingent on the existence of what he, in a broad use of the word, calls an “institution.” With this term, Bourdieu means to suggest any durable set of power-laden relations that effectively authorizes the utterances of certain classes of persons and, in doing so, renders those verbal deeds binding on others. “The use of language, the manner as much as the substance of the discourse, depends on the social position of the speaker, which governs the access he can have to the language of the institution, that is, to the official, orthodox and legitimate speech” (Bourdieu 1991, 109). As my two hypotheticals suggest, absent that social position (in this case, of judge) and/or the conditions that situate the occupant of that position in an appropriate context (in this case, the courtroom), the result will be an unhappy performative issued by what Bourdieu calls an “imposter” (109). What happens when we apply Bourdieu’s criticism of Austin to a consideration of the performative that is a death sentence? Doing so, we must conclude that whatever illocutionary force that sentence bears is not a function of its utterance, narrowly construed. Rather, that force is a fruit of the institution of capital punishment, that is, the network of practices that encompasses judge as well as executioner and, indeed, the larger structure of domination in which that institution is embedded and by which it is authorized: “The authorized spokesperson is only able to use words to act on other agents and, through their actions, on things themselves, because his speech concentrates within it the accumulated symbolic capital of the group which has delegated him and of which he is the authorized representative” (Bourdieu 1991, 111). This recalcitrant complex of state power, whose symbols pervade the microcosm that is Judge Harris’s courtroom (the flag, the robe, the gavel), is a necessary condition of the death sentence’s intelligibility qua performative and, consequently, its illocutionary capacity to trans-

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form Dodd into a condemned man. “The limiting case of the performative utterance is the legal act which, when it is pronounced, as it should be, by someone who has the right to do so, that is, by an agent acting on behalf of a whole group, can replace action with speech, which will, as they say, have an effect: the judge need say no more than ‘I find you guilty’ because there is a set of agents and institutions which guarantee that the sentence will be executed” (75). But is Bourdieu’s criticism of Austin altogether adequate? Bourdieu argues that, in order to understand the force of performative utterances, we must “establish the relationship between the properties of discourses, the properties of the person who pronounces them and the properties of the institution which authorizes him to pronounce them” (1991, 111). As we have seen, according to Bourdieu, because Austin pays insufficient heed to the second and third parties to this relationship, he veers toward an “internal,” that is, formalistic, analysis of performative utterances and their illocutionary force. To counter that error, Bourdieu insists that the institution that guarantees the force of any given performative utterance is “external” to it and, correlatively, that the speaker of such an utterance, qua “delegate,” “represents” the authority of that institution.16 This account of the relationship between utterance, utterer, and institution is unhappy for several reasons, although not all are of concern to me in this context.17 To suggest that the institution of capital punishment stands “outside” or “apart” from the verbal deed that is a death sentence is to leave unexplained the generation of that institution’s authority as well as the discursive means by which it is “represented” by one who acts as its “delegate.” It is better, I would argue, to think of a judge who issues a death sentence as an agent who, in reciting this authoritative act, draws on conditions of illocutionary felicity that are immanent but not, for that reason, strictly confined to the immediate scene of its utterance. This, I take it, is what one of Austin’s better students, Judith Butler, is getting at when she states, although not expressly in reference to capital punishment, that Bourdieu “fails to take account of the way in which social positions are themselves constructed through a more tacit operation of performativity. Indeed, not only is the act of ‘delegation’ a performative, that is, a naming which is at once the action of entitlement, but authorization more generally is to a strong degree a matter of being addressed or interpellated by prevailing forms of social power” (1997, 156–57).18


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To illustrate this argument, we can return once more to Judge Harris. Part of the problem with my initial account of the death sentence’s illocutionary force, which represented it as a divine performative that kills by means of words alone, is that it misrepresented the character of his agency. While Harris, and possibly his mother, are perhaps tempted to imagine that his utterance issues forth from a sovereign voice, the fact that he is statutorily bound to abide by the jury’s verdict suggests otherwise, as does the administrative requirement that he complete the Judgment and Sentence form in order to give full legal force to his utterance. From these two constraints, it is possible to tease an emendation of Austin’s argument, one that is predicated on a criticism that in a sense reverses that made by Bourdieu. Bourdieu takes Austin to task for failing to consider the structures of power that invest a judge’s utterance with illocutionary force. I now want to suggest that these same structures constrain and indeed constitute the identity as well as the agency of that judge. Although Austin is aware of the requirements imposed by what he calls conventions, this does not prompt him to subject to critical interrogation the “I” who utters this or that performative and, more specifically, to call into question its status as an autonomous speaking agent. Butler, however, does so as follows: The authority/the judge (let us call him “he”) who effects the law through naming does not harbor that authority in his person. As one who efficaciously speaks in the name of the law, the judge does not originate the law or its authority; rather, he “cites” the law, consults and reinvokes the law, and, in that reinvocation, reconstitutes the law. The judge is thus installed in the midst of a signifying chain, receiving and reciting the law and, in the reciting, echoing forth the authority of the law. When the law functions as ordinance or sanction, it operates as an imperative that brings into being that which it legally enjoins and protects. The performative speaking of the law, an “utterance” that is most often within legal discourse inscribed in a book of laws, works only by reworking a set of already operative constraints. And these conventions are grounded in no other legitimating authority than the echo-chain of their own reinvocation. (1993, 107) The performative that is a death sentence is not, in other words, an undetermined verbal deed performed by a sovereign “I.” Were it such,

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it could and would bear none of the authority that it derives from its status as an “echo” of the cumulative invocations that constitute the institutionally circumscribed practice of death sentencing. Because the identity of the “I” who speaks the death sentence, qua judge, is a creature of the institutional conventions that simultaneously enable and constrain this utterance, and because those conventions necessarily exceed Judge Harris’s utterance in time and space, in a sense that is not altogether metaphorical it is not entirely clear just “who” imposes that sentence, nor just “when” or “where” it is pronounced. A death sentence, on this account, is not well understood as a singular deed, as an action that transpires and expires at a discrete moment in time. Rather, to use Butler’s term, it is a citational moment within a power-laden activity whose legacy reaches into the past as well as the future, neither of which, qua constitutive context, can be demarcated with absolute precision. The bureaucratic diffusion of sovereign power identified by Dubber, which makes it impossible to identify unequivocally an agent who is responsible for either the infliction or the imposition of a death sentence, thus finds its complement in an account of speech acts that implies that neither the conditions of the death sentence’s intelligibility nor its illocutionary force can be located in the agent who utters this performative. In sum, in ways he can acknowledge only at the cost of rendering his own authority problematic, Judge Harris is not his own man, and that is perhaps most true when he is within his own courtroom. That he thinks otherwise is to be explained, quoting Butler again, by the fact that “what is invoked by the one who speaks or inscribes the law is the fiction of a speaker who wields the authority to make his words binding, the legal incarnation of the divine utterance” (1993, 107).19 This fiction cannot be manufactured absent the legal conventions whose repeated reinvocation is the indispensable condition of whatever illocutionary force a death sentence bears. Its force, pace Bourdieu, is not a property that comes to it from outside this chain of conventions; rather, the authority that is the condition of its capacity to do what it says is one of the effects produced by their ritualized reiteration in cases dispersed across time and space. One more time, Butler: The judge who authorizes and installs the situation he names invariably cites the law that he applies, and it is the power of this


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citation that gives the performative its binding or conferring power. And though it may appear that the binding power of his words is derived from the force of his will or from a prior authority, the opposite is more true: it is through the citation of the law that the figure of the judge’s “will” is produced and that the “priority” of textual authority is established. Indeed, it is through the invocation of convention that the speech act of the judge derives its binding power; that binding power is to be found neither in the subject of the judge nor in his will, but in the citational legacy by which a contemporary “act” emerges in the context of a chain of binding conventions. (1993, 225) If the statement of a death sentence is a citational utterance in the sense suggested by Butler, one whose authority draws on but at the same time occludes its derivative status, then the distinction Austin draws between illocutionary and perlocutionary acts begins to assume the character not of categorical opposition, but of mutual constitution.20 Specifically, when Harris sentences Dodd to death, that sentence’s illocutionary force can only be understood in relation to and in fact is constituted by the chain of perlocutionary consequences set in motion by its predecessors. Correlatively, the perlocutionary consequences occasioned when Harris sentences Dodd to death include generation of the authority, the binding power, that will enable future death sentences to exert illocutionary force. This is not to deny the distinction between illocutionary and perlocutionary acts, but it is to suggest that they are interdependent in a way that spells trouble for any effort to distinguish categorically between a death sentence’s imposition and infliction. Because anything that threatens to erode that distinction bears the capacity, at least in principle, to disclose the sense in which the law’s performatives only acquire illocutionary force by citing the contingent “institution” of capital punishment—an institution that encompasses imposition as well as infliction, judicial wig as well as scaffold—it becomes all the more imperative to deny Clarence Lackey his claim. What Is an Execution? When did the execution of Westley Allan Dodd take place? Most of us are inclined, I suspect, to answer January 5, 1993, at 12:05 A.M., the

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moment when the trapdoor release mechanism, a steel pedal embedded in the death chamber’s wooden floor, was engaged. But is this answer entirely adequate? The noun execution suggests that this was a well-bounded event (as does the phrase death sentence, which I have now rendered problematic), and hence that we should be able to specify with some degree of precision the temporal boundaries that distinguish this event from those that led up to and followed it. But if that is so, then just when did this execution begin and when did it end? Those who witnessed this event stated that, although his body turned slowly in a counterclockwise direction, Dodd appeared quite lifeless almost immediately after he arrived at the end of his rope (Walla Walla UnionBulletin, January 5, 1993, 1). Should we therefore say that this execution concluded when he died (leaving aside the complications posed by the absence of unequivocal criteria for the determination of biological death)? Or, given that penitentiary protocol stipulates that an execution is not officially over until a pronouncement to this effect is issued by a physician, should we conclude that it did not end until 12:09 A.M.? But if that is so, should we then conclude that the anonymous physician who issued this declaration was party to this killing and so, in some significant sense, an accomplice to it? But that cannot be since the code of ethics issued by the American Medical Association expressly enjoins physicians from participating in executions (Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association [article 2.06]).21 To evade this conclusion, should we assume that, from the standpoint of the medical profession, the act of pronouncing Dodd dead occurred after he was already biologically dead, whereas, from the standpoint of the state, Dodd was not certifiably dead until he was declared to be so? More generally, and in light of these complications, should we now infer that the legitimation requirements of medicine and law generate divergent responses to the question of when the “story” of Westley Allan Dodd ended, and hence that determination of its conclusion is an affair of discursive construction that cannot be resolved through appeal to the “facts” of the matter? Matters prove equally thorny when we ask when the execution of Dodd began. Did this event begin when the trapdoor vanished beneath Dodd’s feet? Or did it begin when the hood was placed over his head and the rope around his neck? Or did it begin when, offered the opportunity to speak his final words, he muttered something, first, about sex


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offenders and, then, about the peace that comes with finding Jesus? Or did it begin when Dodd exited the holding cell and walked some thirty feet to the death chamber? Or did it begin when, the previous day, he was moved to that cell from solitary confinement in the Intensive Management Unit? At some point in this regression, it seems clear, we will want to say that event X or Y is not a part of the execution proper. Should we be unable to do so, what is to prevent us from concluding that Dodd’s execution commenced in Judge Harris’s courtroom and at the moment he was sentenced to die? But what nonarbitrary criteria can we deploy in drawing that line of demarcation? The answer is not clear, and it is that uncertainty that opens up the possibility of affirming a credible “Lackey claim.” Thus far, I have suggested that the death sentence, when considered as an illocutionary performative, complicates the effort of liberal law to draw and sustain an unambiguous line of demarcation between its imposition and infliction. In this section, as the puzzle elaborated above is intended to suggest, I revisit this complication, but this time through reference to the perlocutionary force of performative utterances. Recall that an illocutionary act is one that accomplishes something via its mere utterance, and that it can do so because such an utterance invokes what Austin calls a “convention” but Bourdieu reconfigures as an “institution.” A perlocutionary act, by way of contrast, is an utterance that initiates a set of consequences that are nonnecessary in the sense that they are not produced by that utterance as its own effect and, for that reason, are temporally distinct from the saying itself. Illocutionary acts prove infelicitous when the necessary conditions prescribed by a “convention” or “institution” are not observed, as when an unauthorized party enacts a particular performative, or when such an utterance is issued under inappropriate circumstances. Perlocutionary acts, in contrast, prove infelicitous when the sequence of actions designated by a performative is not executed by all participants correctly and/or completely. No doubt in anticipation of my argument, Austin labels such infelicities “misexecutions,” and they can be occasioned, for example, by a misunderstanding on the part of some participant in the procedure set in motion by the performative or, alternatively, by a failure of what Austin calls “uptake” (1962, 116), as when a participant refuses or neglects to do what it prescribes. At first blush, it might appear that conventional accounts of the

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relationship between a death sentence’s imposition and infliction rely on something akin to Austin’s notion of perlocutionary force. On those accounts, the act of sentencing is taken to be an instrumental action that has the effect of putting in play a bureaucratically articulated chain of linkages, as state officials move the condemned from courthouse to penitentiary to holding cell and, finally, to death chamber. Wig and gallows are thereby disjoined in the sense that imposition of the death sentence occurs prior to its infliction, but they remain connected insofar as this utterance sets in motion a series of consequences that, barring a reversal, pardon, escape, unsuccessful execution, or some other infelicity, culminates in the production of a corpse. Perhaps the most sophisticated version of this account is provided, as I noted in the second section of this chapter, by Robert Cover. When imposing a death sentence, Cover contends, a judge ordinarily presupposes the operative adequacy of “the conditions of effective domination” (1986, 1616).22 Absent those conditions—the links joining the judicial sentence to the administrative execution—“the law may come over time to bear only an uncertain relation to the institutionally implemented deeds it authorizes” (1617). For example, and appealing to something much like Austin’s notion of perlocutionary infelicity, Cover suggests that “if the warden should cease paying relatively automatic heed to the pieces of paper which flow in from the judges according to these arbitrary and sometimes rigid hierarchical rules and principles, the judges would lose their capacity to do violence” (1626) and their performatives would assume the character not of orders but of exhortations. The prospect of such failure leads Cover to argue, in a way that is reminiscent of my contention that the “institution” of capital punishment is an immanent condition of the illocutionary force of a death sentence, that in the absence of the conditions of effective domination a judicial command will prove “morally unintelligible” (1621). However, as I have already intimated, Cover’s analysis is vitiated by his construction of word and deed as distinct sorts of entities as well as his mechanistic representation of the former as “triggers” (1986, 1613) that precipitate the latter. Austin’s argument implies that, because performative utterances are themselves forms of conduct, imposition and infliction must both be situated within the larger category of deeds. One might try to accommodate this point, as do Austin Sarat and Thomas Kearns (1991), by regarding sentence and execution


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as two forms of violence, but then distinguishing between the two on the grounds that one is “symbolic” and the other “physical”: While the words of judges authorize violence, they seem not to carry it out. Yet judges do violence in both a symbolic and an instrumental sense, even as they seek to hide both. The violence of legal interpretation is disembodied. Or, rather, the violence that judges do is done to subjects who are disembodied by law’s procedures and its fictions, subjects stripped of any history and of connection to the human community. The process of (re)embodying subjects and applying physical violence is left to others. When the symbolic violence stops, such physical violence begins; when specified incantations are performed behind law’s bureaucratic façade, blood can then be spilled. (265–66) While this formulation reminds us, as does Cover, that judges are deeply implicated in the violence they command, the distinction between its symbolic and physical manifestations does not so much overcome that between word and deed as reconfigure it in slightly altered terms. The problematic character of this reworking is compounded by the distinction drawn by Sarat and Kearns between embodiment and its absence. Austin’s representation of performative utterances as deeds suggests that judges are never the disembodied oracles they might have us take them to be. To secure silence in a courtroom, a judge may issue the command: “Order in the court.” Or that judge may simply bang a gavel. The former is as fully a bodily deed as is the latter, and the latter is as fully meaningful as is the former. By the same token, and as they will be the first to insist, those who are sentenced to die by a judicial proclamation are never in need of reembodiment. Better, I would suggest, to ask how the performative that is a death sentence, considered as an illocutionary and perlocutionary act, effects a transformation in the character of embodiment in a way that is not readily captured on the terrain defined by the opposition between word and deed or that between symbolic and physical violence. As a first step toward preparing more promising ground, I now want to argue that, considered as a perlocutionary act, the death sentence pronounced by Harris is not merely continuous with but also partly constitutive of Dodd’s death. The sense in which this is so might

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be more readily apparent if Harris were to utter a death sentence and then, in order to make evident the force of his utterance, climb down from the bench, disrobe, and employ his bare hands to do what a noose will accomplish more efficiently some two and a half years later. What this hypothetical ignores, obviously, are the various “responsibilityshifting mechanisms” that serve to disconnect the death sentence’s imposition from infliction. That dissociation might appear less solid if we were to recall that the term sentence can be employed as a noun but also as a transitive verb. Might we suggest that, because the death sentence uttered by Harris is linked to Dodd’s incarceration, and because his incarceration is linked to his execution, death sentence and execution are linked as well? Or, alternatively, and following Bourdieu, might we think of the performative uttered by Harris as a special sort of prediction, one that “contributes practically to the reality of what it announces by the fact of uttering it, of pre-dicting it and making it predicted, of making it conceivable and above all credible and thus creating the collective representation and will which contribute to its production” (1991, 128)? Or, lastly, might we contend that what Butler says of hate speech, of words that wound as a result of their intrinsic force but also because of the consequences they threaten, can be transposed to the arena of capital punishment? The threat prefigures or, indeed, promises a bodily act, and yet is already a bodily act, thus establishing in its very gesture the contours of the act to come. The act of threat and the threatened act are, of course, distinct, but they are related as a chiasmus. Although not identical, they are both bodily acts: the first act, the threat, only makes sense in terms of the act that it prefigures. The threat begins a temporal horizon within which the organizing aim is the act that is threatened; the threat begins the action by which the fulfillment of the threatened act might be achieved. (1997, 11) What distinguishes the threat that is hate speech from the imperative that is a death sentence is the fact that the latter is more adequately secured by the “conditions of effective domination,” as well as by the authority that accompanies judicial pronouncements, and so is less prone to derailment, for example, by falling prey to perlocutionary infelicity of one sort or another. To acknowledge the unlikeliness of


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such infelicity is, of course, to recall just how tightly connected are the ligatures securing the various components of the institution of capital punishment. To indicate how my construction of these linkages differs from that of Cover, consider the game of Hangman, in which one participant identifies the number of letters in a word whose identity is not revealed, while another seeks to discover that word by guessing the letters that make it up. Those who play this game, like the attorneys and state agents who contest the fate of one sentenced to death, are engaged in a conventional practice that simultaneously enables and constrains what counts as an intelligible move. In effect, the game opens with one party in the role of the condemned, the one upon whom sentence has been passed, and the other in the role of the judge, the one who has uttered this performative; and their contest concerns whether that sentence will in time be executed. The first move takes place when the condemned guesses whether a specific letter is included in the word chosen by the judge; and each failure to guess correctly, like each unsuccessful appeal of a death sentence, moves that game one step closer to the ending mandated by the judicial imperative. Each of those moves is simultaneously an illocutionary as well as a perlocutionary act; it is the former insofar as it, through its very utterance, effects a reconfiguration of the game and so the relationship between its players, and it is the latter insofar as it, in virtue of its consequences, moves the game forward in time. Moreover, the designation of each guess as a “move” suffices to indicate that none is well understood in terms of the opposition between word and deed. Nor is any given move well situated on the terrain defined by the opposition between physical and symbolic. Like the documents that accumulate over time as a death sentence is reviewed by various state and federal courts, every move in the game of Hangman is afforded a form of permanence it would otherwise lack through its inscription on paper; but that act of recording is no more and no less embodied, no less and no more material, than is its linguistic articulation. From the standpoint of the condemned, each successful move adds another letter to the word that must be uttered in order to escape execution. These letters are not so many discrete entities, and the relationship among them is not additive in any mechanical sense, for each of the characters entered prior to the last is an immanent ingredient, a

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contributing constituent, of that word’s complete intelligibility. From the standpoint of the state, each wrong guess on the part of the condemned, as with each failed appeal, builds on its predecessors in a way that more fully manifests the force of the initial performative, as first a head, and then a torso, and then one leg, and then another are drawn dangling from the scaffold. From the standpoint of neither judge nor condemned is time something that occupies the inert spaces between so many self-contained acts. Rather, time is the medium within which these moves congeal, as the term condemned ever more fully defines the materiality of the sentenced body. Dodd’s execution is therefore joined to Harris’s death sentence, not in the sense that they are identical (as Heath has it), nor in the sense that the latter is an effect mechanically triggered by the former (as Cover has it), but rather in the sense that this imperative initiates an internally related sequence of perlocutionary consequences that, insofar as they prove felicitous from the standpoint of the state, incrementally generate the corpse whose existence was prefigured in and by that utterance. Consider, in this light, the Judgment and Sentence form that was prepared by the clerk of Clark County Superior Court and signed on July 26, 1990, by Judge Harris, by the prosecuting and defense attorneys, and, finally, just beneath his fingerprints, by Westley Allan Dodd. As I noted earlier, strictly speaking, it is not the words of Judge Harris, but rather this document, once duly certified by the county clerk, that gives his utterance its legal force. For that reason, this document is itself an illocutionary performative. But it is also a perlocutionary performative in the sense that it is followed by preparation and submission of an Order and Commitment form that commands Dodd’s transportation to and confinement within the state penitentiary in Walla Walla. Strictly speaking, this is a nonnecessary consequence in the sense that issuance of this second order is not accomplished by issuance of the first, just as the second mandates a further consequence, the relocation of Dodd, that is not itself accomplished by that form’s completion and certification. What work, then, is performed by these two forms? Is there a sense in which the inscription of Judge Harris’s signature, an embodied deed that is a necessary condition of their citational authority, enacts a sort of violence, one that anticipates but also contains within it, as immanent implication, the collapse of the death chamber’s trapdoor beneath Dodd’s feet? Might we suggest that the first of these two forms,


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as illocutionary act, inscribes the death sentence on the body of Dodd in the sense that, from the standpoint of the law, it is now compelled to signify that sentence as the principle of its (intel)legibility? From this moment forward, after all, Dodd’s legal persona is that of one, to quote from the Judgment and Sentence form, whose body “shall be imprisoned in the state penitentiary prior to and subsequent to the issuance of the death warrant as provided in RCW 10.95.160 and shall therein be held until executed.” Might we then suggest that the second form, a perlocutionary consequence of the first but also an illocutionary as well as a perlocutionary act in its own right, serves to ratify but also to etch that sentence more deeply into Dodd’s flesh by commanding the officers of the Department of Corrections “to receive the defendant,” who henceforth shall be known as an “Inmate Sentenced to the Death Penalty (ISDP),” “for classification, confinement, and placement as ordered in the Judgment and Sentence”? Each step toward eventual execution is yoked to its predecessors as well as its successors, and each serves to implicate Dodd more fully within the state’s machinery of death. The parts of this machinery, although fragmented across space and time in accordance with the imperatives of responsibility diffusion, are nonetheless so many components, which, working together as a mutually constitutive constellation of illocutionary and perlocutionary acts, ever more completely materialize the force of the initial judicial performative. Buried Alive A century prior to Dodd’s execution in Washington, when authorizing officials in New York to proceed with their electrocution of William Kemmler, the United States Supreme Court cautioned that “punishments are cruel when they involve torture or a lingering death” and so “something more than the mere extinguishment of life” (In re Kemmler, 136 U.S. 436 [1890], 447). In the argument I have presented in this chapter, however, every successful invocation of the institution of capital punishment involves a “lingering death.” One might try to nail down this claim, as I suspect the attorneys for Clarence Lackey did, by quoting Justice Brennan’s statement, in Furman v. Georgia (408 U.S. 238 [1972]), to the effect that “mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending exe-

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cution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death” (288).23 But this contention turns on a distinction between psychological and physical suffering that is dependent on that between mind and body; and that latter distinction, in addition to being as problematic as that between word and deed, simply abets liberal law’s effort to restrict the problem of pain to the fragment of time after the switch is thrown, the trapdoor released, the pellets dropped into the acid, and so on. Better, adapting an argument advanced by Elaine Scarry in The Body in Pain (1985), to suggest that the incremental elaboration of a death sentence’s force, its unfolding as an concatenated performative act, is correlative with and, indeed, achieved through the piecemeal destruction of the world of the condemned.24 To indicate what I mean by this, by way of analogy, consider what it is to age and, more specifically, what it is to slip toward death as a result of a debilitating terminal illness. Such an illness removes one from the land of the living long before it culminates in the moment of death, narrowly construed (leaving aside, once again, the complications inherent in determining that moment). To become confined to a home, whether institutional or domestic, and then to a room, and, finally, to a bed, is to become a body whose status as human becomes questionable, precisely because its existence is now exclusively confined to engagement with those things that are directly related to the cause of bare biological persistence. “As the body breaks down,” Scarry writes, “it becomes increasingly the object of attention, usurping the place of all other objects, so that finally, in very very old and sick people, the world may exist only in a circle two feet out from themselves; the exclusive content of perception and speech may become what was eaten, the problems of excreting, the progress of pains, the comfort or discomfort of a particular bed or chair” (1985, 32–33). Prior to the onset of disease, the world of fabricated things, of ordinary objects, enabled this body to be other and more than a mere body. By liberating it from the pressing imperatives that otherwise afflict warm-blooded creatures, for example, basic items of clothing enabled that being to engage in matters beyond those immediately related to maintenance of a constant internal temperature. An analogous sort of second skin was furnished by the walls and ceilings of the manufactured structures that being unreflectively inhabited; the work they did in providing shelter from the elements made it possible


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for that body to project itself into a world where it could attend to specifically human activities, whether that be the writing of a poem or, should this be the body of a judge, the uttering of a death sentence. But now, caught up in the unrelenting grip of disease, this body turns in upon itself and so is ever more claustrophobically consigned to the realm of the living dead. To endure a death sentence is to endure something akin to the living death that is a terminal illness, but, of course, with the proviso that at some point a specific date of death will be assigned and, when that date arrives, barring some interruption of this performative, the event of dying will be caused by a deliberate act of killing.25 Be that as it may, for the judicially condemned, in moving from imposition to infliction, incremental contraction of the world secures the transformation of what was once an embodied human being into a creature that is ever more completely defined by the bare fact of embodiment and, as such, is no longer so clearly human (and so, of course, easier to dispatch). In making this claim, I have no truck with the sort of humanist essentialism that informs Justice Brennan’s oft-cited claim in Furman v. Georgia (408 U.S. 238 [1972]): As with the rack and thumbscrew, Brennan insisted, the contemporary imposition of capital punishment treats “members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause [the Eighth Amendment’s prohibition of cruel and unusual punishments] that even the vilest criminal remains a human being possessed of common human dignity” (273). Rather, and much more prosaically, my argument is concerned with alterations in the lived contexts within which the death-sentenced body is concretely situated and with how such alterations remove the condemned from the world by removing the world from the condemned (and vice versa). Their net effect is given apt expression by a convict on death row in Alabama: “The living dead is what it adds up to. I mean, what does a maggot do? A maggot eats and defecates. That’s all we do: eat and defecate. Nothing else” (quoted in Johnson 1979, 185).26 Incarceration, obviously, is one means of securing the world’s contraction, thereby prefiguring the full force of the judicial performative; and that is all the more so when, as is the case in the state of Washington, solitary confinement is statutorily prescribed for those on death row, and the administrative rule prohibiting communication among

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those so confined is strictly enforced.27 That said, the imprisonment of Westley Allan Dodd does not altogether remove him from what I am here calling “the world.” No doubt, the walls and ceiling of his cell in the Intensive Management Unit, where he was held from the time of his conviction until just before his execution, are the means of his constraint; and yet they are also the conditions of his humanization. Sheltering his body, but also his writing platform, his pen, his bunk, and the Bible he began to read shortly before his death, the work done by these cinder blocks enabled Dodd to be something other than a creature whose being was exhausted by the incessant imperatives of embodiment. In addition, because he was still permitted telephone, mail, and visitation privileges, he was able to engage in various forms of selfextension. Just as his cell’s small rectangular window enabled him to project his body, if only visually, beyond its cramped confines, so too did a radio allow him to draw the world within. Approximately twenty-four hours prior to his date with a rope, Dodd was moved to the holding cell that is immediately adjacent to the death chamber. There, he was denied all visitors other than his attorney and what the Department of Correction’s field instructions designate as “approved clergy.” All telephone and mail privileges, with the exception of calls to and from that attorney, were also revoked, and no other means of communication with the world beyond this unit’s confines (e.g., his radio) were permitted. The administratively prescribed equipment of this windowless cell includes a toilet whose tank is topped by a small sink, a bed consisting of a metal frame and a mattress, two sheets, two blankets, a pillow and pillowcase, a towel, a washcloth, a bar of soap, basic clothing and, finally, approved “legal materials” and “religious items.” Leaving aside these last two items, which testify to what remains of Dodd’s standing as something other than a body, pure and simple, his shift of venue from the Intensive Management Unit to this holding cell constricts his world still more by limiting his artifactual company to those things that minister to his barest biological needs: to sleep, to stay warm, and to keep clean. For one dying of a terminal disease, confinement of the world to such artifacts is occasioned by the body’s collapse in upon itself. For one sentenced to death, the body’s collapse in upon itself is occasioned by the deliberate withdrawal of all artifacts that might otherwise enable it to reach beyond its own perimeter. As such, in a way that is not metaphorical, in a way that


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cannot readily be assigned to the category of either symbolic or physical, these acts of dispossession must be understood as cumulative acts of violence against what was once a human being but is now ever more a body awaiting final disposition. Removed from this holding cell, stripped of the artifacts that till now affirmed his residual status as a human being (e.g., his Bible), denied those that till now testified to his status as a creature of embodied vulnerability (e.g., the holding cell’s metal bed frame and mattress), Dodd enters the death chamber where a rope, a trapdoor, and an oversized eye hook conspire to accomplish a consummatory unification of the illocutionary and perlocutionary effects of Judge Harris’s original utterance. Only a microphone, jutting out from the wall just above the plate glass window in front of which his body is now positioned, recalls that this being retains a single instrument, its voice, with which to reach beyond its pinched confines, and so to remind those seated before the plate glass window below that he is not yet, to quote from the field instructions, the “remains” he is about to become. That we are inclined to think that the execution has yet to take place simply testifies to the law’s success in separating into so many discrete instants the interlocking moments of the state’s lethal clockwork. Infelicitous Death Sentences Although my argument may appear to suggest otherwise, in the last analysis, my appropriation of Austin’s conceptual equipment is intended to suggest that the law in general and capital punishment jurisprudence in particular are, at least in principle, less secure than they typically seem to be. In Austin’s hands, what begins as an attempt to specify the defining features of performative utterances, the unique grammatical form that renders them authoritative and so capable of doing what they say, concludes as something more akin to a comedy of errors, as he catalogs the varieties of infelicity to which they are prone. The convention necessary to give a performative utterance its force may not exist, or the authority it requires in order to generate such force may be in disrepair. The person who invokes this convention when uttering a performative may not be authorized to do so, or that person, whether authorized or not, may utter it in inappropriate circumstances. The procedure initiated by any given performative may not be executed cor-

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rectly or completely, perhaps because those required for its “uptake” do not understand what is required of them, or because they are unwilling to abide by its terms, or because they mean well but nonetheless botch one or more of its imperatives. And so forth and so on. In the hands of Judith Butler, the insecurity of performative utterances becomes still more pronounced. The authority of performatives, as we saw above, is citational in the sense that it is rooted in the congealed constellation of past utterances that are simultaneously invoked and occluded when a speaker initiates a speech-act with the pronoun “I.” If that is so, then the signification of these past utterances must exceed the intentions of their speakers as well as the contexts within which they were spoken. Were that not the case, were intelligibility limited to instances of literal repetition (as opposed to re-citation), then performatives could not prove meaningful when uttered in future contexts and by different speakers. But if that is the case, then the signification of the present invocation must also exceed that intended by its speaker as well as the context in which it is now uttered. Were that not the case, this convention would soon perish, trapped within the immediacy of its moment. Accordingly, Butler concludes, “[S]peech is always in some ways out of our control” (1997, 15), and hence the success of any given performative is always provisional. If a death sentence, at least in principle, is subject to all of the infelicities cited above, as Austin’s argument implies, and if its signification is never entirely self-contained, as Butler’s argument implies, then its power to do what it says is more contingent, less unilateral, than we usually assume. That we do not often acknowledge this contingency, that neither the illocutionary nor the perlocutionary force of this utterance is typically in doubt, testifies to the capacity of the institution of capital punishment, as presently organized in the United States, to guarantee against outbreaks of linguistic ambiguity or slippage among its well-coordinated parts. But the fact that this machine is now relatively well oiled (ignoring the wrenches recently thrown into its gears by the release of numerous persons wrongly sentenced to die as well as the renewed attention given to the death sentence’s discriminatory application) should not lead us to endorse a conception of performativity that denies its susceptibility to infelicity or ambiguity and thereby encourages the contemporary state’s sovereign pretensions.28 To put this otherwise, I would suggest that, in addition to making political use


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of botched executions, opponents of capital punishment follow the lead of Clarence Lackey by asking how botched death sentences might be provoked. How might the death sentence’s susceptibility to infelicity be exploited? How might the death sentence, in time, be relegated to the category of failed performative, of words that no longer bear the power to call their referent into being through utterance alone or, alternatively, of words that no longer initiate the condensed sequence of events their utterance pre-dicts? In this chapter, at best, I have hinted at one possible way of exploiting the death sentence’s potential for infelicity. The doctrine of separation of powers, which is essential to the authority of the liberal state, demands the establishment of a categorical distinction between judicial and executive officials, and that distinction is manifest in the disjunction we conventionally draw between the imposition and infliction of a death sentence. That disjunction in turn is parasitic on a cluster of deeply sedimented discursive presuppositions, including that which locates word and deed in discrete ontological domains. Here, I have tried to suggest the profoundly political character of those presuppositions, and I have argued that, when we recognize that words are as fully performative as are deeds, it becomes difficult to sustain the conviction that judges are somehow less deeply implicated in the violence of capital punishment than are executioners. That conviction is misguided, first, because a judicially pronounced death sentence bears illocutionary force only in virtue of its effective incorporation of the more comprehensive structure of violence that is our institution of capital punishment; and, second, because that utterance’s perlocutionary force initiates a sequence of interlacing consequences, which, barring some interruption, slowly suffocates the condemned within a tomb of the living dead. To think of the death sentence in such terms is perhaps to render the constitutional complaint of Clarence Lackey less incredible than it now appears to Clarence Thomas.

Chapter 3

John Locke’s Noose

This chapter joins two issues. The first concerns the generic accounts of the modern state offered by Max Weber and Michel Foucault, and the second concerns the principal method employed by the specifically English state to execute its citizens. Some argue, as I shall indicate, that the Weberian and Foucauldian readings of the state are categorically opposed, an argument that in turn suggests quite different ways of making sense of capital punishment and, more particularly, the noose. My aim is to challenge this opposition by offering a Foucauldian genealogy of this political practice, but to do so in a way that demonstrates how transformations internal to its history contribute to formation of a state that is well understood in Weberian terms. The rationalization of hanging in England between the late sixteenth and late nineteenth centuries plays a crucial role in the constitution of a state that can credibly present itself as monopolist over the means of legitimate violence and hence as the sole body authorized to kill subjects with impunity. Generation of that representation depends on the state’s incremental expropriation of the power to punish wrongdoing from civil society and so in time its conversion into something akin to the “private” possession of a bureaucratized state. Articulation of an unambiguous line of demarcation between governmental and nongovernmental affairs, which I take to be liberalism’s primary contribution to the emergence of the modern state, is in turn a condition of the apparent impartiality and hence legitimacy of the laws that mandate death as a rightful form of punishment. However, because this boundary is never finally secured and so never entirely immune to challenge, it must be fortified periodically, and it is in these terms that refinements in the art of state-sponsored hanging can be profitably read. What emerges from my tale of hanging’s rationalization is a conceptualization of the modern liberal state that does not, as some say 47

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Foucault does, occlude its rootedness in threats and acts of violence, including that of killing. But nor does this conceptualization reify the liberal state and so occlude, as some say Weber does, the perpetually problematic character of its efforts to distinguish its acts of violence from those it seeks to contain and punish. Foucault versus Weber? To indicate how my primary sources of theoretical inspiration are sometimes opposed to one another, I begin with brief expositions of Michael Ignatieff’s Foucauldian critique of Weber and Nicos Poulantzas’s Weberian critique of Foucault. In an essay titled “State, Civil Society, and Total Institution” (1983), Ignatieff criticized recent revisionist histories of punishment, including his own earlier work (1978), that remain too much fixated on the state and, more particularly, the state conceived in Weberian terms. Although Ignatieff does not offer a detailed exegesis of Foucault on punishment (and nor will I), it seems clear that his critique is informed by Foucault’s claim that, “in political thought and analysis, we still have not cut off the head of the king” (1980a, 88–89). By this, Foucault means to suggest that theoretical and political projects that treat the state as a privileged object of inquiry remain trapped by a conception of sovereign will, as well as a representation of criminal law as its paradigmatic mode of articulation, that emerged during the heyday of monarchical absolutism. The stubborn persistence of this “juridico-discursive” (82) representation of political power, even after its generative context has passed into the dustbin of history, has deflected attention from the web of extralegal disciplinary powers that, since the late seventeenth and early eighteenth centuries, ever more fully secures the mundane order of liberal political regimes. In contrast to juridico-discursive power, which takes the form of legal prohibitions enunciated by the state and backed by coercive sanctions directed at disobedient bodies, disciplinary power is productive in the sense that it fashions the very souls of subjects through meticulous and incessant regulation of their everyday conduct in numerous extrastate contexts (schools, families, churches, professional associations, factories, etc.). As such, “[T]his type of power is in every aspect the antithesis of that mechanism of power which the theory of sovereignty described or sought to transcribe” (Foucault 1980c, 104).1 Accordingly,


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Foucault concludes, “[W]e should direct our researches on the nature of power not towards the juridical edifice of sovereignty, the State apparatuses and the ideologies which accompany them, but towards domination and the material operators of power, towards forms of subjection and the inflections and utilisations of their localised systems, and towards strategic apparatuses. We must eschew the model of Leviathan in the study of power” (102). In addition to embracing Foucault’s exhortation to investigate the subterranean workings of disciplinary power rather than the more arresting commands of sovereign authority, Ignatieff implicitly endorses a second and more radical Foucauldian claim about their relationship. In an important sense, Foucault sometimes appears to contend, the state does not exist; or, better, what we call the “state” is merely an articulation of the work accomplished by formally nonpolitical mechanisms of disciplinary power: I don’t want to say that the State isn’t important; what I want to say is that relations of power, and hence the analysis that must be made of them, necessarily extend beyond the limits of the State. In two senses: first of all because the State, for all the omnipotence of its apparatuses, is far from being able to occupy the whole field of actual power relations, and further because the State can only operate on the basis of other, already existing power relations. The State is superstructural in relation to a whole series of power networks that invest the body, sexuality, the family, kinship, knowledge, technology and so forth. (1980b, 122) If indeed “the state is no more than a composite reality and a mythicized abstraction” (Foucault 1991a, 103), then any analysis that treats it as the originating source or preeminent locus of power will fail to appreciate the complex practices of discipline, dispersed throughout the body politic, upon which its existence essentially depends. Correlatively, to draw a strict line of demarcation between “state” and “civil society,” or between “public” and “private,” as liberal political doctrine does, is to reify this epiphenomenal reality, to reinforce its self-proclaimed but illusory status as power’s monopolist, and, by extension, to distract attention from the insidious workings of discipline. From this deconstruction of the state, Foucault draws the appro-

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priate methodological precept: “The important thing is not to attempt some kind of deduction of power starting from its centre and aimed at the discovery of the extent to which it permeates into the base, of the degree to which it reproduces itself down to and including the most molecular elements of society. One must rather conduct an ascending analysis of power, starting, that is, from its infinitesimal mechanisms, which each have their own history, their own trajectory, their own techniques and tactics” (1980c, 99). Effectively affirming this precept, Ignatieff argues that the modern prison is best understood as a consolidated expression of the relations of disciplinary power that permeate school, workplace, family, and so on. The crimes punished by the state should therefore be regarded as “the tip of the iceberg, as the residue of those disputes, conflicts, thefts, assaults too damaging, too threatening, too morally outrageous to be handled within the family, the work unit, the neighbourhood, the street” (Ignatieff 1983, 205).2 It would appear to follow, accordingly, that the distinctive form of punishment that is capital “can only be understood once its position within a whole invisible framework of sanctioning and dispute regulation procedure in civil society has been determined” (205). What presently obscures this “invisible framework,” what most contributes to our fetishism of the state, Ignatieff concludes, is the abiding influence of Max Weber and, more particularly, his account of the modern state. In his essay, Ignatieff merely alludes to that account;3 and so, before turning to Poulantzas, I briefly recall its essential elements. Unlike its medieval Catholic predecessor, Weber argues, the modern state cannot be specified through reference to any immanent or essential ends. Rather, it can only be defined in terms of its assertion of hegemonic control over the means that distinguish it from other associational forms; and the “decisive means for politics is violence” (Weber 1958a, 121). Accordingly, Weber defines the state as follows: “A compulsory political organization will be called a ‘state’ insofar as its administrative staff successfully upholds the claim to the monopoly of the legitimate use of physical force in the enforcement of its order” (1978, 1:54). This, Weber would be quick to remind Ignatieff, is not to say that the state is the only agent that can engage in authorized acts of violence; but it is to say that within a state-centered regime “the use of force is regarded as legitimate only so far as it is either permitted by the state or prescribed by it” (1:56).


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The state’s monopolistic status, which finds its theoretical articulation in the doctrine of sovereignty, is an accomplishment made possible via the expropriation of nonstate actors by rulers aspiring to absolutism. “Everywhere,” Weber argues, “the development of the modern state is initiated through the action of the prince. He paves the way for the expropriation of the autonomous and ‘private’ bearers of executive power who stand beside him, of those who in their own right possess the means of administration, warfare, and financial organization, as well as politically usable goods of all sorts” (1958a, 82). Just as the emergence of a capitalist economy involves the gradual dispossession of small independent producers, so too does creation of the modern state turn on its incremental appropriation of the resources of power hitherto deployed by the Cathlic Church, the aristocracy, craft guilds, independent cities, and so forth. Once expropriated, however, these resources do not become the property of any specific individual or group: “No single individual personally owns the money he pays out, or the buildings, stores, tools, and war machines he controls. In the contemporary ‘state’—and this is essential for the concept of state—the ‘separation’ of the administrative staff, of the administrative officials, and of the workers from the material means of administration is completed” (82). The bureaucratic state thereby becomes the distinctive locus of that which is public; and what is public, that is, official, is known to be so only because it is distinguishable from what is private, that is, that which has not undergone comparable dispossession. In order to distinguish its violence from that which it transcends as well as that to which it responds, the state’s use of coercive force is folded within legal forms whose legitimacy is sustained by their claim to maximal realization of the values of impersonality, neutrality, and predictability. No matter how well folded, however, criminal law can never entirely escape its origins in the harsh imperatives of violence. Accordingly, Weber defines law as follows: “An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose” (1954, 5). A sentence of death offers the ultimate manifestation of this definition, and that sentence can become something other than an abstract judicial pronouncement only via deployment of the state’s concrete instrumentalities of killing: “[O]rganized domina-

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tion requires the control of those material goods which in a given case are necessary for the use of physical violence” (1958a, 80). The noose is a paradigmatic example of such a good, an instrumentality with which the state translates its avowed monopoly over the disposition of legitimate force into the terms of effective practice. Although chiefly animated by neo-Marxist aspirations, Nicos Poulantzas adopts this Weberian representation of the modern state in his effort to check the waxing influence of Foucault and, more particularly, the “aberrations” advanced in Discipline and Punish (Poulantzas 1978, 77).4 In his State, Power, Socialism, Poulantzas insists that Foucault “underestimates the role of the State itself, and fails to understand the function of the repressive apparatuses (army, police, judicial system, etc.) as means of exercising physical violence that are located at the heart of the modern State” (77). When Foucault suggests that modernity is defined by disciplinary power aimed at the production of docile bodies and exercised at sites scattered throughout the body politic, he effectively conceals the systematic role of the state in reproducing class relations and, more important for my purposes, occludes its expropriation of the instrumentalities of coercion.5 While it may be true that modernity has witnessed a decline in the degree of overt physical violence exercised in extrastate domains, and while it may be true that this can be explained in large measure through reference to the insidious spread of technologies of disciplinary power, that possibility is itself conditional upon the state’s successful pacification of these domains via its acquisition of hegemonic control over the means of legitimate violence: “State-monopolized physical violence permanently underlies the techniques of power and mechanisms of consent: it is inscribed in the web of disciplinary and ideological devices; and even when not directly exercised, it shapes the materiality of the social body upon which domination is brought to bear” (81). Foucault’s blind spot, Poulantzas continues, is aggravated by his representation of the state’s claim to sovereignty, as well as the articulation of that claim in the form of law, as more or less irrelevant residues of absolutist regimes. As we saw above, Foucault’s juridicodiscursive conception of power, which he (sometimes) claims we must now reject, involves reading law as a formally articulated prohibition issued by a supreme source of authority and backed by threats of bodily harm. But, Poulantzas contends, this narrow conception ignores the


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productive role of constitutional and administrative law, first, in providing a framework within which conflicts may be resolved without recourse to state violence or its threat (although the invisibility of that threat should never be confused with its absence); and, second, in codifying and regulating the exercise of organized public violence: By issuing rules and passing laws, the State establishes an initial field of injunctions, prohibitions and censorship, and thus institutes the practical terrain and object of violence. Furthermore, law organizes the conditions for physical repression, designating its modalities and structuring the devices by means of which it is exercised. In this sense, law is the code of organized public violence. Those who neglect the role of law in organizing power are always the ones who neglect the role of physical repression in the functioning of the State. (1978, 77) Moreover, because Foucault does not see how the state’s monopoly over the means of violence is “concealed by the displacement of legitimacy toward legality and by the rule of law” (Poulantzas 1978, 81), he cannot appreciate the legal order’s role in manufacturing the sort of social consensus that, arguably, accounts for his failure to perceive the (usually but not always) veiled reality of state coercion. “Max Weber,” Poulantzas concludes, “must be given the credit for establishing this point and for demonstrating that the legitimacy of its [the state’s] concentration of organized force is a ‘rational-legal’ legitimacy based on law” (80). Although Poulantzas does not expressly indicate how his Weberian account of the state might inform a criticism of Foucault’s (and, by extension, Ignatieff’s) reading of capital punishment, were he to do so, he might say something like the following: Because Foucault is persuaded that premodern punishments (e.g., torture) sought to reaffirm the integrity of injured sovereign power by inflicting pain upon the body of the condemned, and because he is convinced that distinctively modern penality takes shape not as “an art of unbearable sensations,” but rather as “an economy of suspended rights” (Foucault 1979, 11) aimed at fashioning docile as well as useful bodies, he cannot help but view capital punishment as an awkward anachronism. That view is presupposed when Foucault affirms that

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From Noose to Needle justice no longer takes public responsibility for the violence that is bound up with its practice. If it too strikes, if it too kills, it is not as a glorification of its strength, but as an element of itself that it is obligated to tolerate, that it finds difficult to account for. . . . [T]he execution itself is like an additional shame that justice is ashamed to impose on the condemned man. (9)

Perhaps, Poulantzas might concede, Foucault can cite the vestigial character of capital punishment in order to explain why the contemporary state must hide or sanitize its violence, for example, by removing its conduct from public view and by abandoning more graphic methods of killing. But the fact remains that for Foucault, no matter how or where it is conducted, capital punishment must appear incongruous within a regime whose self-understanding demands “a slackening of the hold on the body” (10) and whose order is chiefly a product of extrastate disciplinary mechanisms, not of state violence or criminal law. For Poulantzas, by way of contrast, execution under cover of law is that which most tellingly discloses the reality of the modern state and its success at achieving order through expropriation and consolidation of the means of violence. Rationalization without Reification Must we, as Poulantzas and Ignatieff appear to suggest, now choose between Weber and Foucault? Ought we to embrace the state as a privileged object of analysis, or should we dissolve this fiction into the relations by which “it” is constituted? Should we adopt an “ascending” or a “descending” method of reading power? Should we regard the practice of capital punishment as a relic of monarchical absolutism, one whose inconsistency with disciplinary power anticipates its eventual demise? Or, should capital punishment indeed disappear, as it has in most industrialized nations, including England, should we read its very superfluity as definitive evidence of the state’s success at monopolizing the means of violence? I propose that we grasp neither horn of these dilemmas. Instead, I wish to recommend that we circumvent these antitheses, and that we do so via a critical appropriation of Weber’s category of rationalization. To some, such an exercise will appear suspect at best. Echoing the


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disagreement between Ignatieff and Poulantzas, but specifically with regard to the category of rationalization, Barry Smart (1985) insists that the claims of Weber and Foucault are irreconcilable. Informing this contention is a teleological reading of Weber’s most significant conceptual innovation, one that represents rationalization as an irreversible force whose march necessarily culminates in the dystopia that is the iron cage. On this reading, the term rationalization invokes a monocausal account of the world’s wholesale secularization as a result of the universal triumph of instrumental reason and its bureaucratic and technological incarnations over the powers of magic, myth, and mysticism. (Incidentally, it is this reading that Ignatieff tacitly presupposes when he asserts that, because so many customs of the ancien régime persisted within the modern era, “the revolution in punishment” that took place during the late eighteenth and early nineteenth centuries cannot be understood as “the generalized triumph of Weberian rationalization” [1983, 190].) But, Smart proceeds, Foucault will have no truck with such totalizing theoretical constructs; and, as evidence, he cites passages in which Foucault expressly declares that “the word ‘rationalization’ is dangerous” (Foucault 1982, 210) as well as his refusal, in a later interview, to identify himself as a Weberian: If one calls “Weberians” those who set out to take on board the Marxist analyses of the contradictions of capital, treating these contradictions as part and parcel of the irrational rationality of capitalist society, then I don’t think I am a Weberian, since my basic preoccupation isn’t rationality considered as an anthropological invariant. I don’t believe one can speak of an intrinsic notion of “rationalization” without on the one hand positing an absolute value inherent in reason, and on the other taking the risk of applying the term empirically in a completely arbitrary way. I think one must restrict one’s use of this word to an instrumental and relative meaning. (1991b, 78–79) In light of these claims, Smart concludes, any effort to identify an orientation common to Weber and Foucault cannot help but obscure the “substantial over-riding differences between the two” (1985, 138). I cannot deny that Weber, in his more apocalyptic moments, sometimes invites the teleological construction of rationalization ascribed to

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him by Smart (see, e.g., 1958b, 181–83). At his best, however, he gives little cause to regard rationalization as something akin to a secularized surrogate for the providential hand of God. Consider, in this regard, Weber’s contention that “the continuum of Mediterranean-European civilizational development has known neither an enclosed cyclical movement, nor an unequivocally mono-linear evolution” (1976, 366). By the same token, Weber gives little cause to think that he regards reason, to quote Foucault, as an “anthropological invariant.” Indeed, I would argue that, in general, Weber’s deployment of the concept of rationalization is quite consistent with the exhortation Foucault advances in order to distinguish his approach from that of Weber: “What we have to do is analyze specific rationalities rather than always invoke the progress of rationalization in general. . . . It may be wise not to take as a whole the rationalization of society or of culture but to analyze such a process in several fields, each with reference to a fundamental experience: madness, illness, death, crime, sexuality, and so forth” (1982, 779–80). In much the same spirit does Weber, in The Protestant Ethic and the Spirit of Capitalism, offer the following methodological precaution: There is, for example, rationalization of mystical contemplation, that is, of an attitude which, viewed from other departments of life, is specifically irrational, just as much as there are rationalizations of economic life, of technique, of scientific research, of military training, of law and administration. Furthermore, each of these fields may be rationalized in terms of very different values and ends, and what is rational from one point of view may well be irrational from another. Hence rationalizations of the most varied character have existed in various departments of life and in all areas of culture. (1958b, 26)6 Whatever their differences on other matters, these passages suggest that the theoretical perspectives of Weber and Foucault on the question of rationalization are more complementary than antagonistic. As such, against Smart, but with Dreyfus and Rabinow, I would argue that Foucault’s account should “be seen as an advance, not a refutation of the Weberian project” (1983, 133).7 But in what ways exactly does the Foucauldian conception of ratio-


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nalization represent an “advance” over the Weberian? What Foucault brings to Weber, which is more a matter of emphasis than of substantive revision, is twofold. First, much more consistently than does Weber, Foucault insists that we must forgo the temptations of teleology as well as any reading of rationalization that might nurture such temptations. Emergence of the defining features of modernity is not governed by any single cause and follows no singular trajectory of development. The rationalization of modern life is therefore not progressive in any simple linear sense; and one must be careful not to presuppose such an account when invoking this concept in order to supply retrospective coherence to a disparate set of contingent events. The intent to rationalize, for example, should not be ascribed to agents whose conduct is better explained through reference to the imperatives of everyday dilemmas and localized events, as those imperatives are understood in terms of the discursive categories currently available to them. Second, and again much more emphatically than does Weber, Foucault insists that we must always ask “how forms of rationality inscribe themselves in practices, or systems of practices, and what role they play within them” (1991a, 79).8 As I shall show in this chapter, the rationalization of hanging follows a practical rather than a theoretical logic in the sense that its mutations are forged in the concrete business of problem solving conducted, for the most part, on so many parochial fields of political contestation. The strategies and tactics explored here are not invented ab initio. Rather, they are so many exigent improvisations fashioned through the appropriation and rearticulation of whatever materials are currently at hand, including inherited institutional forms, specific technological devices, received vocabularies, renegotiated patterns of human conduct, and so on. Because these strategies and tactics are almost never afforded any sort of formal articulation (until, as we shall see, the final quarter of the nineteenth century), the rationality they evince remains squarely embedded within the conduct they inform. In light of these Foucauldian refinements, why do we still need Weber? What Foucault cannot do as well as Weber is to show how various incremental changes sometimes coalesce into larger structures of domination, how transformed modalities of practice, although neither intended nor foreseen by anyone, sometimes come together to create obdurate formations of power that are more than the sum of their indi-

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vidual parts. Granted, immediately following his exhortation to embrace an “ascending analysis of power,” Foucault invites us to ask how its “infinitesimal mechanisms” are sometimes “invested, colonised, utilised, involuted, transformed, displaced, extended etc., by ever more general mechanisms and by forms of global domination” (1980c, 99). But, as we have seen, given his rejection of the discourse of sovereignty as well as his conviction that the mechanisms of discipline have now rendered juridico-discursive modalities of power largely superfluous, Foucault is disinclined to acknowledge and investigate the recalcitrant formation of power that is the modern liberal state. Or, to put this point somewhat differently, because Foucault never develops the conceptual categories needed to identify the “general mechanisms” whereby relations of power are “colonized” or “globalized,” which Weber gets at via his notion of expropriation, he is not wellequipped to identify the structured pattern of effects that issues at least in part from the rationalizing tactics I investigate in this chapter. To refer to these tactics as so many instances of “rationalization,” as I do, is not to violate Foucault’s nominalism by ascribing to them some singular essence, underlying coherence, or unitary source. But it is to contend that, over time, these tactics generate various sedimentary effects, including a state that can credibly present itself as monopolist over the means of legitimate violence. My representation of the emerging liberal state as an effect, which echoes Foucault’s genealogical representation of the self, avoids the reification that, according to Ignatieff and others, is encouraged by Weber’s formal definition. On my account, the state is not some privileged first cause that stands apart from the order it is said to rule. Rather, it is a relational effect whose appearance of freestanding reality is produced and sustained by the reiterated and combined working of the various practices that serve to demarcate “it” from the complex of practices that come to be deemed “external” to it. Timothy Mitchell, drawing on Foucault, provides a useful example of such a state-generating practice: One characteristic of the modern state . . . is the frontier. By establishing a territorial boundary and exercising absolute control over movement across it, state practices define and help constitute a national entity. Setting up and policing a frontier involves a vari-


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ety of fairly modern social practices—continuous barbed-wire fencing, passports, immigration laws, inspections, currency control and so on. These mundane arrangements, most of them unknown two hundred or even one hundred years ago, help manufacture an almost transcendental entity, the nation-state. This entity comes to seem something much more than the sum of the everyday activities that constitute it, appearing as a structure containing and giving order and meaning to people’s lives. . . . What we call the state, and think of as an intrinsic object existing apart from society, is the sum of these structural effects. (1991, 94) On the one hand, with Poulantzas, I believe that Foucault’s antipathy toward the modern liberal state as an object of analysis, especially when joined to his claim that power always moves upward from the local to the global, has discouraged inquiry into its aggressive participation in expropriation, concentration, and deployment of the powers afforded hyperbolic articulation in the legal doctrine of sovereignty. That state is not merely “superstructural,” if by that term Foucault means to suggest that it has no reality apart from so many constellations of nongovernmental power; to decompose state into society is to fail to see, for example, how the designation of an agency as an arm of the state affords it access to specific legal, economic, military resources as well as a claim to a distinctive sort of authority. On the other hand, when I bring the state back in, I mean to recall its status as a relational artifact, that is, a complex of powers whose alleged unity requires continual reproduction of the mechanisms that generate this reified appearance. The analytic task thus becomes one of figuring out how the state is discursively codified, thereby distinguishing it from the formally nonpolitical spheres to which it is necessarily related. As I shall argue below, the rationalization of criminal law in early modern England, which includes the gradual refinement of hanging, is one of the more significant vehicles through which monarchical absolutism detached itself, however haltingly and unevenly, from the complex of feudal powers in which it was previously enmeshed. That project is given a substantial boost via the doctrine of liberalism. Understood not so much as an abstract political theory, but rather as a vital component of a more comprehensive program of governmental rationality, it is liber-

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alism that most persuasively articulates the distinction between public and private; and that boundary is of no less political moment than are those marked by barbed wire. Securing that distinction is essential to the never finished and ever-contestable project of expropriating the means of violence from society and reconstituting its exercise as so much “official” business, whether conducted by the professional soldier, the tax collector, or the executioner. What lends that expropriation the appearance of legitimacy, to complete the circle, is the state’s adherence to the formal requirements of legal rationality. To bring this section of my argument to a close, and to do so in a way that anticipates the terminus of the tale I tell here, I wish to indicate one additional reason why we should not altogether abandon Weber in favor of Foucault. A distinction internal to Weber’s concept of rationalization enables me to give my inquiry a critical twist that is unavailable to Foucault. For Weber, ascriptions of rationality are necessarily relational in character. From the standpoint of causal relations, for example, an action is rational if it proves efficacious as a means toward a given end, but irrational if it does not; thus to one whose end is the maximization of hedonistic pleasure, ascetic conduct is irrational. From the standpoint of logical relations, however, an action is rational if it is consistent with some belief or structure of beliefs, but irrational if it is not; thus to one who believes in the possibility of salvation via the performance of good works, ascetic conduct is rational, and that is so even if such conduct proves causally inefficacious in achieving its specified end. In sum, “a thing is never irrational in itself, but only from a particular . . . point of view” (Weber 1958b, 194). Weber’s perspectival approach to rationalization undergirds his distinction between substantive and formal rationality. Substantive rationality involves assessing action in terms of its capacity to satisfy concrete needs and/or ultimate ends; think, for example, of a regime whose economic arrangements are deliberately organized and judged a success or failure in light of their capacity to augment that state’s international prowess or, alternatively, its realization of some determinate conception of distributive justice. By way of contrast, formal rationality involves assessing action in terms of its achievement of the values of predictability and calculability, absent any consideration of its success in maximizing ends other than these same abstract values; think, for


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example, of the use of various accounting techniques to quantify and so render homogeneous each element that enters into the production process. With this distinction in hand, Weber suggests that what is rational from the perspective of formal rationality may prove irrational from the perspective of substantive rationality, and vice versa. Indeed, Weber argues, the claims of formal and substantive rationality may prove not merely inconsistent, but actively subversive of one another. For example, the belief that one can, at least in principle, master all things via the application of instrumentally rational conduct undermines the value universalism of traditional religious and mythological worldviews as well as their population of the cosmos with mysterious forces and otherworldly gods. In doing so, instrumental reason’s advance dispels belief in transcendent sources of meaning, and so fosters the conviction that the ends animating value-rational action are unavailable for objective determination. When that happens, as when Weber’s Calvinist becomes a godless capitalist, the quest for efficiency and calculability, once considered a means, becomes an end in itself, while those values that were once ends in themselves are consigned to the dustbin of irrational preference. As a result, social practices and institutions become more instrumentally effective but also less emotionally compelling and meaningful for those engaged in them, leading in time to what Weber dubbed the “disenchantment” of the world (1978, 1:506). As the preceding example suggests, the conflict between formal and substantive rationality is not simply an abstract axiological affair. Especially in economic and political domains, it often takes shape as very real conflict between competing interests and groups. Because the advance of formal rationality is never neutral in its effects, for example, its institutionalization may violate substantive ends of economic justice. To see the point, consider that essential mechanism of formal rationality in a capitalist economy, the free contract. Precisely because its concrete operation favors some while harming others, economically privileged groups typically seek to maximize the range of conduct subject to its imperatives, while disempowered groups often seek to check the spread of the contractual form in the name of specific distributional norms. In much the same way, of course, does institutionalization of

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the liberal legal order’s promise of equality under the law, that central component of its claim to legitimacy, advance the cause of some, but not of all: Formal justice is thus repugnant to all authoritarian powers, theocratic as well as patriarchic, because it diminishes the dependency of the individual upon the grace and power of the authorities. To democracy, however, it has been repugnant because it decreases the dependency of the legal practice and therewith of the individuals upon the decisions of their fellow citizens. Furthermore, the development of the trial into a peaceful contest of conflicting interests can contribute to the further concentration of economic and social power. In all these cases formal justice, due to its necessarily abstract character, infringes upon the ideals of substantive justice. (Weber 1978, 2:812–13) “Among those groups who favor formal justice,” Weber concludes, “we must include all those political and economic interest groups to whom the stability and predictability of legal procedure are of very great importance, i.e., particularly rational, economic, and political organizations intended to have a permanent character” (2:813). The institutionalization of formal rationality is most perfectly achieved via that bastion of organizational permanence, the modern bureaucracy. As the administration of public justice in early modern and modern England, including the conduct of hanging, becomes ever more informed by the bureaucratic norms of depersonalized authority, perfected techniques of calculation, the supremacy of specialized knowledges, and the ideal of unfettered instrumental control, the rationality of the liberal state becomes ever more clearly demarcated from the formally irrational realm of the unofficial. To the extent that this is so, the substantive rationality of democracy, with its affirmation of the value of popular control over and participation in the administration of justice, grows ever more hollow. “Primeval Barbarism” In the remaining sections of this chapter, after a brief consideration of hanging as it was practiced during the initial millennium following its


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introduction to England, I explore this art with greater care, first, as it was conducted from the late sixteenth to the late eighteenth century on the west end of London at Tyburn; second, as it was practiced outside the walls of London’s Newgate Prison, beginning in 1783; and, third, as it was performed when finally removed to Newgate’s interior in 1868. My aim throughout is to identify the rationalizing practices, including their discursive, technological, and institutional elements, that either frustrated or contributed to the relational constitution of a state that is credibly construed in the modified Weberian terms suggested in the preceding section; and to do so in a way that indicates how the categories of liberal political doctrine, and especially its distinction between public and private, encouraged and facilitated that accomplishment. “If the identity of the man who first thought of killing another by putting a rope around his neck and hanging him from a tree were not lost in the mists of primeval barbarism, his name would be honored nowhere more than in England where, until quite recently, the noose remained a symbol second only to the cross in denoting a tradition and a way of death upon which our society was founded” (Bailey 1989, 1). Although the historical record is not entirely clear, it appears that hanging was first introduced to England by the Germanic tribes whose members invaded around the middle of the fifth century.9 From the Anglo-Saxon incursion to the end of the eighteenth century, the basic method of hanging remained quite straightforward. At its most elementary, a slipknot formed at one end of a rope was placed around the neck of the condemned, that rope was passed over the branch of a tree, and the victim was then hauled upward, left to die of asphyxiation caused by strangulation, although no doubt interruption of oxygen and blood flow to the brain, combined with nerve damage, often played a role as well. To compensate for the occasional refusal of trees to bend to the hangman’s imperatives, a surrogate branch in the form of a crossbeam was sometimes placed between the limbs of one or, in some instances, two trees; and, by the early twelfth century, if not before, in many English communities, those trees had been replaced by manufactured uprights as well. Typically, in deploying this more refined apparatus, the hangman’s assistant would mount a ladder in order to straddle the crossbeam. The condemned, hands bound and neck noosed, would then be required to climb several rungs of this same ladder, at

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which time the assistant would tie the rope’s far end around the horizontal bar. When the hangman proper would twist the ladder, “turning off” the victim, the latter would fall not more than a few inches, insufficient to achieve cervical dislocation, and so the principal cause of death remained asphyxiation. By custom, the corpse would typically remain dangling in what came to be known as the “sheriff’s picture frame” for an hour or so afterward, partly for the purposes of public edification but also to assure against the possibility of resuscitation. The limited technological rationalization of hanging over the course of its first millennium in England was matched by a relatively low level of political rationalization. Recall that for Weber the modern state is defined by its successful claim to the status of monopolist over the means of legitimate violence, either in the sense that it alone exercises such violence or, as a qualification to that claim, in the sense that it alone determines under what conditions others are permitted to do so. But, as J. M. Beattie (1985) and Lawrence Stone (1977) have noted, prior to the centralization of state power in England, the resolution of everyday disputes by means of violence was exceedingly common but only rarely considered worthy of attention by local authorities; and, in all contexts where authority was exercised, whether that be the family, the school, or the workplace, discipline was routinely maintained by means of unregulated physical punishment, typically whippings and beatings. Moreover, recall that for Weber what distinguishes the modern state’s violence is its articulation in specifically legal form; the task of modern law, he argues, is achievement of “a form of permanent public peace, with the compulsory submission of all disputes to the arbitration of the judge, who transforms blood vengeance into rationally ordered punishment, and feuds and expiatory actions into rationally ordered legal procedures” (1978, 2:908). Yet very little of the violence committed in premodern England ever became a legal matter. Instead, what eventually comes to be labeled criminal conduct (e.g., assault or homicide) was routinely handled as a matter of private vengeance or settlement between the parties immediately involved, and fines were the most common means of dispute resolution. Only when such means failed were cases sent on to trial; and, even as late as the mid–eighteenth century, it was not uncommon for assault convictions to conclude with imposition of a minimal fine whose amount had been determined in private negotiations involving the prosecutor, the defendant,


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and the accuser. In sum, the administration of justice in medieval England was characterized by the routine employment of violence, an absence of uniform laws, and a proliferation of private dispute resolution mechanisms under the control of no single authority. To grant this characterization is not, however, to gainsay the modest steps taken by the Crown in late medieval England to secure some measure of centralized control over the administration of justice in the interest of internal pacification. Perhaps most notable in this regard were the reforms of Henry II (1154–1189). By assuming royal jurisdiction over all homicides, at odds with prevailing custom, the Angevin reforms undercut Anglo-Saxon traditions that mandated payment by kin or, failing that, a feud between kinship groups; as a result, many homicides that were not previously considered capital were now made punishable by hanging (Green 1972, 1976). However, and although the right of an abbey, town, or manorial lord to erect a gallows was technically granted by the Crown, administration of the death penalty was usually a parochial affair. That this was so is suggested, albeit indirectly, by the variability of customs governing the selection of hangmen. While the sheriff in late medieval England was formally responsible for supervising the execution of convicted felons, only rarely did he perform the act of killing itself. How his surrogate was selected can be taken as a rough indicator of the degree and form of political rationalization in any given locality. On many medieval English estates, it was not uncommon for hangmen to hold land on condition that they act as executioners when called upon to do so; and, in such cases, a principle of hereditary succession typically governed the identification of future executioners (Robin 1964). However, with the gradual disappearance of land tenure on the basis of service, new ways of securing hangmen were required. In Romney, for example, until very late in the fifteenth century, it was generally the responsibility of successful appellees in capital cases to perform their own executions or, alternatively, to locate a substitute. Failing to do either, the accuser was sometimes jailed, along with the convicted felon, until the former agreed to comply with the imperatives of local custom. What we see here, to invoke Weber’s terms, is neither simple “blood vengeance” nor “rationally ordered punishment.” While capital disputes are resolved by a public authority, a judge, rather than by the aggrieved party or that party’s kin, execution of the

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sentence that follows conviction is assigned to the latter, and so there is no clearly demarcated official monopoly over the means of violence. In other localities, felons were occasionally offered commutations (and sometimes even pardons) on condition that they agreed to serve as executioners. In the royal burgh of Wigtown, for example, local law required that the hangman be a criminal under sentence of death; execution of his sentence was delayed, however, until old age rendered him unable to perform competently, at which time he was hanged. The task of punishment was thereby foisted onto a party other than the plaintiff; but, because this practice entailed no clear differentiation between the legal status of the person being turned off the ladder and the person doing that turning, it too left ambiguous the distinction between the law’s violence and that which it branded criminal. Finally, in Kent, during the reigns of Henry II and Henry III, the porter of the city of Canterbury served as executioner for the entire district, for which he received an annual allowance from the sheriff of twenty shillings. Expropriated from the aggrieved party or his kin, the right to punish is here exercised by an agent who is compensated for his services via tax revenues extracted by other public authorities. In contrast to the customs of Romney and Wigtown, the assignment of this duty to a paid city official, albeit as a task auxiliary to his primary responsibilities, effectively draws a neater distinction between the acts of violence performed by those holding positions of public authority and the acts of violence those persons punish. Tyburn’s Triple Tree In 1571, Dr. John Story, a Roman Catholic noted for his prosecution of Protestants during the reign of Queen Mary, was drawn “from the Tower of London unto Tiborn, where was prepared for him a newe payre of Gallowes made in triangular maner” (Laurence 1971, 43).10 Perhaps best known in virtue of its appearance in the upper-right-hand corner of William Hogarth’s The Idle ’Prentice Executed at Tyburn (fig. 2), the infamous “Triple Tree” replaced a gallows, which, like many of its medieval kin, consisted simply of a beam placed across the branches of two trees. Whereas the older device could only handle ten persons at a time, this new contraption, in virtue of its three interlocking crossbeams, made it possible to hang as many as twenty-four felons simul-

Fig. 2. The Idle ’Prentice Executed at Tyburn, by William Hogarth (1747). (Courtesy Charles Deering McCormick Library of Special Collections, Northwestern University.)

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taneously, eight to a side. If instrumental efficiency is one of the distinguishing marks of formal rationalization, then Tyburn’s “deadly nevergreen,” as the gallows came to be dubbed, represents an impressive advance in the economy of violence as well as a fitting emblem of the monarch’s ongoing struggle, especially in Tudor and early Stuart England, to secure public acknowledgment of its status as monopolist over the legitimate use of physical force. Between 1327 and 1509, prior to erection of the Triple Tree, only six capital statutes were enacted in England. Although precise figures are exceedingly difficult to determine, it would appear that in comparative terms actual executions were relatively infrequent during these centuries. However, between 1509 and 1660, a span that includes Tyburn’s heyday, thirty new capital statutes were adopted, and hanging became the Crown’s preferred means of answering the dislocations engendered, above all else, by the enclosure movement. Although some have claimed that seventy-two thousand thieves were hanged during the reign of Henry VIII alone, and that under Elizabeth as many as four hundred vagabonds were simultaneously strung up, more credible is Douglas Hay’s estimate that in the century following 1530 somewhere between five hundred and a thousand persons were hanged annually, the vast majority for offenses against property (1993, 145).11 No matter what the exact number, it seems evident that the noose was inseparable from the absolutist state’s effort to consolidate its authority; and so it is not altogether implausible, as does Peter Linebaugh, to label the English political order during this era a “thanatocracy” (1992, 50). It is important, though, not to exaggerate the extent to which the English state’s claim to a monopoly over the means of legitimate violence was in fact realized at this time. Indeed, one may argue that frequent public executions in sixteenth- and early-seventeenth-century England were, or so authorities hoped, a surrogate source of the order that would later be secured far more effectively by centralized agencies for the prosecution of crime and a unified police force. As late as the eighteenth century and even into the nineteenth, law enforcement in England remained a largely decentralized affair conducted by amateurs (see Sharpe 1980). Its principal agent was the local constable who, because he occupied an unpaid position, exercised extremely limited powers of arrest, received virtually no professional training or legal guidance, and returned to his local parish following a prescribed period of service, was poorly suited to stand as an autonomous agent of


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state control. As such, his role in the administration of justice was largely confined to providing assistance to private citizens who, as victims of theft, assault, or other crimes, still found it necessary to take the initiative in securing and paying for the prosecution and trial of alleged malefactors. Under these circumstances, only the army could claim to stand as an agent of distinctively national political power, although even it was organizationally ill-equipped to do more than respond, at best sporadically and never without encountering local resistance, to riots and other exceptional crises. If, as Mitchell (1991) recommends, the state is a structural effect generated by the complex of practices that create its apparent demarcation from that which is subject to its authority, its reality must have appeared uncertain at best in early modern England. Public hanging, I have suggested, was one means by which the absolutist state sought to render this self-representation credible. But, because the conduct of this practice was unevenly rationalized in the sense that it incorporated a mix of preabsolutist customs, sovereign pretensions, and incipient liberal aspirations, its contribution to this end could not help but be qualified. The account of a Tyburn execution recorded by a certain M. Misson, traveling through England in 1698, indicates one reason why this was so: They put five or six in a Cart . . . and carry them, riding backwards with the Rope about their Necks, to the fatal Tree. The Executioner stops the Cart under one of the Cross Beams of the Gibbet, and fastens to that ill-favour’d Beam one End of the Rope, while the other is round the Wretches Neck: This done, he gives the Horse a Lash with his Whip, away goes the Cart, and there swing my Gentlemen kicking in the Air: The Hangman does not give himself the Trouble to put them out of their Pain; but some of their Friends or Relations do it for them. They pull the dying Person by the Legs, and beat his Breast, to dispatch him as soon as possible. (Quoted in Gatrell 1994, 52) Prior to the thirteenth century, persons destined for execution, after being stripped of all but their shirts, their arms tied behind their backs, were typically dragged on the ground from Newgate jail to Tyburn, a distance of a little under three miles; at least occasionally, the result of such rough transport was death in the streets. To avoid cheating the

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hangman in this fashion, as early as 1295 and possibly before, the condemned were placed on an ox-hide, which eventually gave way to the hurdle, the sledge, and, finally, the cart. As Hogarth’s Idle ’Prentice makes clear, by the time the Triple Tree was installed, those sentenced to death made the journey from Newgate, in the company of a chaplain, while seated facing backward in a cart atop their own coffins, with neck noosed and hands manacled. Once at Tyburn, the noose was attached to one of the three crossbeams and the cart was removed from beneath the victim or victims by whipping the animals—usually, a team of horses—to which it was yoked. While this innovation did away with the complications caused by those who either would not or could not climb the ladder of the traditional medieval gallows, and while it made it possible to hang several simultaneously rather than successively, it also had the effect of eliminating the short drop that followed when one was “turned off.” Because this in turn made it even less likely that “Jack Ketch’s Pippins” would quickly lapse into unconsciousness at rope’s end, deployment of the cart often extended the duration of visible suffering; and that in turn encouraged the practice, noted by Misson, whereby executioners, or more often relatives and/or friends, would swing from the legs of these “gallows apples” in order to hasten their expiration (or sometimes, executioners claimed, to support them and so delay their demise). The intervention of friends and kin suggests the absence at this time of any unambiguous distinction between those who were officially authorized to take part in state-sponsored killings and those who were not. The uncertainty of that line was confirmed in a different way when Tyburn’s hangmen would sell used nooses, typically at a rate of sixpence per inch, to those who sought a souvenir or believed in the rope’s power to cure warts and tumors. Such a custom could persist only so long as the state’s expropriation of privately owned means, their transformation into inalienable public goods, remained unconsolidated. What these examples indicate, in sum, is the presence of a gap between the state’s sovereign pretensions and the grounding of those pretensions in the mundane world of material artifacts. John Locke’s Death Sentence The reform of practices that compromised the state’s claim to sovereign authority accelerated as the English body politic, especially after the


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Glorious Revolution, grew more fluent in the discourse of liberalism. One of liberalism’s foremost contributions to English politics, I would argue, was its articulation of a doctrinal framework that explained why such practices were indeed problematic and, by implication, how the liberal state might achieve a more consistent rationalization of its violence than was possible under its absolutist predecessor. To establish a context for this claim, let me begin by citing a puzzle first noted by Douglas Hay close to a quarter century ago: In the years between 1688 and 1820, the number of English capital statutes grew from about fifty to over two hundred, with the vast majority of newly enacted laws concerning offenses against property. As one would expect, during this same period, the number of capital convictions increased dramatically as well. Actual execution rates, however, began to taper off toward the end of the seventeenth century and then leveled off for the duration of the eighteenth, especially after 1750. How, Hay asks, are we “to explain the coexistence of bloodier laws and convictions with a declining proportion of death sentences that were actually carried out”? (1975, 23). To explain the multiplication of statutes and convictions, Hay suggests that after the Glorious Revolution “men of property” found it essential to secure formal legal recognition of their rights of ownership, and that need was soon acknowledged by Parliament and court. However, because the Whigs did not believe that their hold on government was fundamentally threatened by either Crown or rabble, they were able to dispense with the large number of executions characteristic of the sixteenth and seventeenth centuries; indeed, the vast majority of those condemned to die found their sentences commuted to transportation. Thus, while the first earl of Shaftesbury insisted that the “mere Vulgar of Mankind” will “often stand in need of such a rectifying Object as the Gallows before their Eyes” (quoted in Hay 1975, 19), he also believed that the noose need not perform its work on a routine basis in order to induce adequate respect for the rights of private property. Accordingly, Hay concludes, “The law made enough examples to inculcate fear, but not so many as to harden or repel a populace that had to assent, in some measure at least, to the rule of property” (57). Not surprisingly, as foremost apologist for the rule of property, Hay cites John Locke, who, on his account, “distorted the oldest arguments of natural law to justify the liberation of wealth from all political or moral controls” (1975, 18). I do not mean to dispute this representation of Shaftesbury’s celebrated confederate. However, because Hay is

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more indebted to Marx than to Weber, he fails to see that the service Locke performs for capitalism is achieved, in large measure, via the service he performs for the English state in its effort to extricate itself from a web of feudal entanglements and, in so doing, to render more credible its claim to monopolistic control over the means of legitimate violence. As Weber and Marx both understood, one of the distinguishing features of feudal orders was the absence of any clear differentiation between public and private realms; so long as aspiring monarchs billed themselves as fathers and mothers to their people, so long as the authority of an aristocracy was rooted in personal loyalties, so long as hangmen purchased and owned their own ropes, there could be no sharply demarcated public sphere and so, strictly speaking, no state. Yet that, to quote Paul Rock, remained the situation in England at the close of the seventeenth century and well into the eighteenth: When the state could guarantee neither physical security nor legal control, effective government passed in large measure over to those who were independently powerful. Political order was mediated by webs and hierarchies which developed around local centres of influence. Those networks were structured by access to the Court and by the possibilities that were afforded by command over territory and people. Patronage bestowed order on the otherwise rudimentary structures created by a weak government and a weak system of communal control. Relations with a patron knit the client into a fluid system of power which substantially replaced formal state government. Positions within that system were personally awarded and personally exploited. Offices, prerogatives and franchises became items of property that were practically removed from external supervision. (1983, 199) The modern state’s claim to sovereign control over the means of legitimate force is premised on its formal abstraction from the “webs and hierarchies” of which Rock speaks, its autonomy from the private domains whose acts of violence it eventually comes to forbid, regulate, or sometimes permit. It is liberal doctrine that furnishes to that state certain of the key conceptual tools it requires in order to reform and justify the practices that effect the appearance of such disengagement. As Locke understood, because the achievement of liberalism pre-


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supposes the state’s authority to impose binding law on the nation as a whole, it is inconceivable absent expropriation and consolidation of the means of its enforcement. The state of nature, we are told in the Second Treatise, describes a condition in which the power to punish crime is universally distributed in the sense that every individual is equally authorized to enforce the dictates of nature’s law. But that condition leaves its members without a certain and impartial “Executioner of the Law of Nature” (Locke 1988, 351). Accordingly, entry into a political community requires that the power to punish be “wholly” ceded to the state. When that act of alienation is complete, those who have done so can think of themselves as private beings only because their identity is now sharply distinguished from that of the public bearers of the power to execute. Locke ratifies this separation of private from public, while simultaneously identifying the latter with the rightful authority to kill, when he categorically differentiates paternal and political power. In Roman law, patria potestas included the right of the father to “dispose” of the life of his children and his slaves. In contrast, and excepting slaves, Locke denies that liberalism’s father has any “Legislative Power of Life and Death” (1988, 323) over the members of the family he commands. Because, as we have already seen, the power to punish crime is altogether relinquished at the moment fathers enter into the social contract, only the state may exercise the power that now comes to define it as such. In short, theoretical articulation of the liberal state presupposes those complementary processes whereby the head of the household is stripped of a prerogative now reserved to the state, while at the same time the state’s head is denied the title of father. The conceptual consequence, displacing medieval accounts that invariably subordinated state power to a theological end, is stark and, it should be noted, altogether congruent with Weber’s understanding: “Political Power then I take to be a Right of making Laws with Penalties of Death, and consequently all less Penalties” (Locke 1988, 268). The hangman’s art, on this account, is definitive of the liberal state. As Locke’s death sentence intimates, what distinguishes this art’s violence from that which it seeks to contain is its expression in legal form: “[T]he Community comes to be Umpire, by settled standing Rules, indifferent, and the same to all Parties; and by Men having Authority from the Community, for the execution of those Rules,

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decides all the differences that may happen between any Members of that Society, concerning any matter of right; and punishes those Offences, which any Member hath committed against the Society, with such Penalties as the Law has established” (Locke 1988, 324). As an umpire whose authority includes the right to kill wayward players, the state must appear to stand apart from the game whose rules it fashions and enforces. Crucial to its capacity to do so are the formal properties of law, and most particularly the abstraction that is an essential condition of its neutrality. More specifically, the legitimacy of state violence requires, first, that it be applied by officeholders who inhabit an unambiguously demarcated public sphere; and, second that it be applied without regard for the substantive particularities that distinguish one person from another. The law’s commitment to impartiality, its “indifference,” does not of course preclude its agents from drawing distinctions between persons, as when one is sent to the gallows, while another is transported to America. What the law cannot do, however, is to permit legally irrelevant features, those deemed private, to influence or dictate that official determination. Securing the Official Domain Liberalism’s distinction between public and private is an invention. If that invention is to become an unquestioned premise of a liberal political order, a fact rather than an artifact, it must be rooted in the stubborn objectivity of tangible things. The more significant reforms in the technique of judicial hangings performed during the two centuries following the Glorious Revolution, considered collectively, exhibit a rough pattern of effects. Although intended by no one, that pattern is well understood in terms of the category of rationalization and, more specifically, in terms of the form of rationalization that characterizes distinctively liberal political orders. These reforms, however, were never adopted without provoking some measure of opposition; and that resistance explains, at least in part, why Weber eventually concluded that, in England, “the degree of legal rationality is essentially lower than, and of a type different from, that of continental Europe” (1954, 316).12 To appreciate Weber’s point here, take another look at Hogarth’s Idle ’Prentice. At Tyburn, hangings were public in the sense that they


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were visible to all who chose to attend. From the perspective of the law’s exponents, such events encouraged a bacchanalia of petty crime and vice, a festival of pickpockets and prostitutes, a holiday from the law rather than a grave affirmation of its majesty. What Hogarth expresses graphically Bernard Mandeville elaborates discursively in his 1725 pamphlet titled An Inquiry into the Causes of the Frequent Executions at Tyburn: It is incredible what a Scene of Confusion all this often makes, which yet grows worse near the Gallows; and the violent Efforts of the most sturdy and resolute of the Mob on one Side, and the potent Endeavours of rugged Gaolers, and others, to beat them off, on the other. . . . If we consider, besides all this, the mean Equipages of the Sheriffs Officers, and the scrubby Horses that compose the Cavalcade, the Irregularity of the March, and the Want of Order among all the Attendants, we shall be forced to confess, that these Processions are very void of that decent Solemnity that would be required to make them awful. (1964, 24) What Hogarth and Mandeville both recognize on some level is that the law’s capacity to distinguish capital punishment from vengeance, its violence from that which it punishes, is compromised when liberalism’s citizenry is not merely the consensual source of, but a vital participant in, the state’s most dramatic affirmation of its Lockean essence. Mandeville is thus unwittingly prescient when, at the close of his pamphlet, he argues that “if no remedy can be found for these Evils, it would be better that Malefactors should be put to Death in private” (1964, 36). The law’s majesty does not fare much better when Mandeville shifts his sights from the Tyburn processional to the gallows proper. When a judge at the Old Bailey imposed a death sentence, he would don a black cap and then write next to the condemned’s name the Latin abbreviation: sus per coll, that is, suspendatur per collum (“let him be hanged by the neck”). Whatever gravity accompanied this act of official recording was mocked by the countless misadventures that occurred when the word became flesh, ranging from snapped ropes, to necks that slipped out of nooses, to decapitations, partial and total, to posthanging revivals of the supposedly dead, to rescue efforts by irate

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crowds, occasionally successful but more often not, to the theft of barely dead corpses by the hired agents of aspiring medical practitioners, and so on.13 The sorry contrast between the rational austerity of a death sentence pronounced from the bench and its actual imposition was amplified still more by the customary practice of permitting the condemned to address the assembled multitude and thereby, at least on occasion, to contest the state’s claim to justice. As Mandeville lamented, that invitation encouraged convicts to die defiantly, in turn persuading those who witnessed such bravado “that there is nothing in being hang’d, but awry Neck, and a wet pair of Breeches” (1964, 37). As histories of English criminal law routinely note, to the considerable relief of Mandeville and those of like mind, hangings at Tyburn came to an end in 1783 when executions were moved to a site just outside the walls of Newgate (see Griffiths 1987, 176–78). Less than a century later, in 1868, this uneasy compromise between the claims of popular justice and those of centralized state power was abandoned, as hangings were relocated deep within Newgate’s interior. While the parliamentary and pamphlet debates concerning these reforms have been duly reviewed, much less often discussed are the various technological innovations that materially articulated the shift from Tyburn’s rude ceremonials to Newgate’s professional routines. As the population of the west end of London swelled throughout the first half of the eighteenth century, as its permanent residents grew ever less tolerant of the commercial and traffic disruptions that attended the hangings conducted eight times a year at Tyburn, pressure mounted to move executions elsewhere. A halfhearted response was instituted in 1759 when the Triple Tree was demolished, its timbers sold to the proprietor of a local tavern for barrel stands. In its stead, and like the condemned themselves, a portable gallows was taken to and removed from Tyburn on a cart, thereby eliminating the time-honored tradition of using its beams for unofficial purposes; no longer, for example, could those unauthorized rework the semiotics of this most symbolically freighted sign of sovereign power by hanging persons in effigy. This new gallows was additionally noteworthy because it was outfitted with a trapdoor whose inventor remains unknown. First employed in the execution of Lord Ferrers in 1760, the drop consisted of a yard-square hatch that was covered in black baize, raised about


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eighteen inches above the floorboards of the scaffold, and set in motion when the executioner retired beneath the scaffold in order to pull on ropes attached to several support beams. Ferrers had originally petitioned to be beheaded rather than hanged on the grounds of his standing as a peer of the realm. This request denied, but still seeking to affirm his nobility, Ferrers arrived at the gallows in his own horsedrawn landau. Dressed in a wedding suit of white satin embroidered with silver lace, just before the noose was placed around his neck, he gave his watch to the sheriff, five guineas to the chaplain, and, mistakenly, another five guineas to the hangman’s assistant rather than to the hangman, Thomas Turlis. When the row between hangman and assistant was finally resolved, in deference to his superior, Turlis begged Ferrers’s forgiveness and then, by some accounts, attempted to hang him using a silken rope provided by the earl himself. Unfortunately, however, when its release was triggered, the hatch jammed part way down, permitting Ferrers’s toes to defy the pull of gravity, and so the time-honored method of pulling on his legs was employed to finish him off. After an hour, his body was removed to Surgeon’s Hall for dissection, at which time the crowd mounted the scaffold and fought one another for scraps of the black baize as souvenirs. What I wish to highlight here is the tension between the particulars of this extraordinary execution and the imperatives of the liberal conception of justice, which, as I suggested earlier, plays a vital role in discursively facilitating the dissociation of the liberal state from the society it claims to rule. Realization of law’s “indifference,” which is essential to legitimation of the state’s affirmation of its exclusive right to regulate the deployment of violence, demands the removal of all invidious distinctions differentiating executioner from executed, with the exception of course of the juridical fact that one is innocent and the other condemned. Yet the execution of Ferrers is defined throughout by markings of inherited status that compromise the abstract imperatives of liberal legal rationality. From the opposite end of the class spectrum, much the same deficiency is apparent when, immediately after its initial deployment, the trapdoor is abandoned because, to quote Sir Peter Laurie, mayor of London, execution by this means is “too aristocratic a mode for common vagabonds” (quoted in Gatrell 1994, 52). In other words, because the drop made it more likely, at least in principle, that the condemned would be rendered unconscious at rope’s end, it

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enabled the meaner sort to evade the tortured asphyxiation that typically followed removal of Tyburn’s cart. The performance of executions in the unconcealed, uncircumscribed, and unspecialized space that was Tyburn’s rolling meadows additionally compromised the state’s claim to autonomy. Echoing Mandeville, Barnard Turner and Thomas Skinner, sheriffs of London and Middlesex, respectively, cited Tyburn’s failure to cultivate the appearances necessary to instill proper appreciation for the law’s majesty as their primary argument in favor of removing executions to Newgate: It has long been a subject of complaint that our processions to Tyburn are a mockery upon the aweful sentence of the law and that the final scene itself has lost its terrors and is so far from giving a lesson of morality to the beholders that it tends to the encouragement of vice. . . . If the only defect were the want of Ceremony, the mind of beholders might be supposed to be left at least in a state of Indifference, but when they view the Meanness of the Apparatus, a dirty cart and ragged harness, surrounded by a sordid Assemblage of the lowest among the vulgar, their sentiments are More Inclined to Ridicule than Duty. The Whole Progress is attended with the same effect. Numbers soon thicken into a Crowd of followers and then an indecent levity is heard, the crowd gathers as it goes, and their levity increases till on their Approach to the Fatal Tree, the Ground becomes a Riotous Mass, and their Wantonness of Speech breaks forth in profane Jokes, Swearing, and Blasphemy. (Turner and Skinner, quoted in Ignatieff 1978, 88–89) Their recommendation approved, Turner and Skinner designed a new portable scaffold, which was first employed on December 9, 1783, when ten persons were simultaneously hanged (although it was capable of handling twice that number). Ordinarily housed inside a shed in the prison yard, this device was drawn by horses into the street on the eve of each subsequent execution, where it stood some eight feet above the pavement.14 A detailed description of this apparatus, composed by Turner and Skinner, published in Gentleman’s Magazine, and accompanied by the diagram reproduced in figure 3, is worth quoting at some length:

Fig. 3. The new platform and gallows in the Old Bailey (1783). (Gentleman’s Magazine (53), courtesy American Antiquarian Society.)

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From Noose to Needle The east part of the stage, or that next to the jail, is enclosed by a temporary roof, under which are placed two seats, for the reception of the sheriffs, one on each side of the stairs leading to the scaffold. Round the north, west, and south sides are erected galleries for the reception of officers, attendants, etc., and, at a distance of five feet from the same, is fixed strong railings, all round the scaffold, to enclose a place for the constables. In the middle of this machinery is placed a moveable platform, in form of a trap-door, 10 feet long by 8 feet wide, over the middle of which is placed the gibbet. . . . Being thus constructed, the platform is raised to its proper height, and the slider, drawn out a little, is firmly supported thereby. At the head of this slider is fixed a lever, whose handle comes above the platform; and the convicts, standing on the platform, being tied to the gibbet, when the signal is given, the executioner, by a very small force applied to the handle of the lever, slides the bar into its place, and the platform falls from under them; and, by the quickness of the motion, it is observed to put the unhappy objects out of pain in much less time than was usual at Tyburn. (Turner and Skinner 1783, 990–91)

At Tyburn, as we have seen, the cart carrying the condemned had to travel through a throng of private persons; doing so, this unexceptional manifestation of quasi-official power was always in danger of being swallowed up within and by that crowd’s irrationality. At Newgate, absent the processional, prisoners emerged from darkness into the domain of public visibility after passing through a screen that some likened to a theater curtain. Hemmed in by the jail, the Old Bailey, and Surgeon’s Hall, all of which demanded that any view of the condemned also acknowledge these obdurate signs of official power, the number of spectators was limited to about five thousand, and so the likelihood that the state’s agents could insure their orderly conduct was considerably enhanced. From Newgate’s scaffold, painted black and draped in crepe, the body politic was excluded in the sense that its hands (but not its eyes) were kept at a salutary distance by the railings that “enclose a place for the constables”; “no other persons,” explained Skinner and Turner, are “permitted to ascend it than the necessary officers of justice, the clergyman, and the criminal” (1783, 990). No longer, consequently, could friends and relatives abridge the suffering caused


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by slow suffocation, and no longer could they contend with surgeons’ hirelings over the ultimate disposition of marketable corpses. Moreover, because these permanent railings relieved the constables of the need to actively discharge their embodied force in drawing and sustaining this line of demarcation, they were now free to stand at attention as so many inert incarnations of the liberal state’s claim to authority. Unequivocally distinguished from those who bear the imprimatur of office, the members of the public were thereby transformed into a collective audience whose participation in this drama was ever more superfluous. Whereas the gallows at Tyburn remained unenclosed, in a space that was neither unambiguously public nor private, the scaffold at Newgate afforded material form to liberalism’s categorical distinction between these two domains. By elaborating the sense of Locke’s distinction in the media of wood, iron, and rope, this structure rearticulated the meaning of law’s violence by more squarely identifying that which is public with that which is official, that is, securely under state control, and that which is private with that which is not. That this realm of officialdom was informed by specifically liberal rather than absolutist premises is suggested by the dramatic decline in capital punishment statutes during the half century following the move to Newgate’s north quad. As I noted in the preceding section, in 1800, at least in theory, capital punishment could be imposed on those convicted of any one of over two hundred offenses. Yet, throughout the eighteenth century, the actual number of executions was considerably lower than one might expect given this statutory reality, principally because the power of royal pardon was so often invoked in order to mitigate the severity of the law’s formal imperatives. The net result of this incongruity, insisted Samuel Romilly in 1808, was a “lottery of justice” (quoted in McGowen 1983, 100) in which not law but arbitrary will dictated who would live and who would die. By 1841, however, the number of crimes punishable by death had dropped to eight, and in practice executions were carried out only for the crime of murder. A testament to the success of liberal reform efforts, argues Randall McGowen (1983), this reduction betrayed not so much an increase in humanitarian sensibilities, as a growing concern that the apparent capriciousness of capital punishment threatened to erode the law’s legitimacy. In contrast to the Tories, who defended an image of discretionary justice, tempered by mercy and exemplified by

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the Crown’s intervention, the Whigs argued for elimination of all capital statutes that necessitated discretionary authority and so compromised the liberal ideal of formal equality grounded in the operation of an impersonal and impartial body of law. The liberal conception of justice was afforded additional artifactual articulation when, at some unknown date during the second half of the eighteenth century, it became the custom to drape a white hood over the head of the condemned after mounting the scaffold. That hood, speculates England’s leading executioner for much of the twentieth century, was adopted in order to “mask the contortions of slow strangulation, which were considered too horrible even for the ghoulish British public to witness, although the logic that public executions were a public deterrent against crime might strictly have been followed by exposing the ultimate horror in order to achieve the maximum deterrence” (Pierrepoint n.d., 127). What is puzzling to Albert Pierrepoint—the failure of the state to maximize the deterrent effect of public punishment by augmenting its spectacular agonies—proves less so if we think of that hood as a manifestation of liberal law’s commitment to impartiality. Recall William Blackstone’s (1979) claim that a person sentenced to death is a civilites mortuus, a disembodied abstraction stripped of the rights and privileges retained by those who remain alive in the eyes of the law. The status of a rightless nonentity is artifactually secured when the seat of personhood, the head, is veiled; and that reduction achieves a complementary twist when, as was the case after 1864, the Newgate scaffold was itself draped in black cloth. By covering its naked skeleton, this innovation insured that nothing below the neck would remain visible after the body dropped. Confined to the sight of an immobilized and undifferentiated head, we might say that the practice of capital punishment at last realized its full etymological sense. And yet it was precisely because those hanged were not in fact disembodied abstractions, precisely because their bodies remained indispensable but irreducibly irrational elements of this practice, that Newgate’s public scaffold proved a source of ongoing official embarrassment. Because there was insufficient room to maneuver a cart in the street outside Newgate’s north quad, the designers of the new gallows found it necessary to reincorporate the hatch that had been eliminated after Ferrers’s botched execution. In certain respects, it is true, that device contributed to the law’s formal rationality; dealing yet another


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blow to the ideal of aristocratic privilege, its employment for all offenders, no matter how common, effectively articulated liberalism’s ideal of equality before the law. In addition, the trapdoor rendered the administration of state violence far more economical: “[B]y a very small force applied to the handle of the lever,” Turner and Skinner had promised, a force whose magnitude paled in comparison to that required to draw a cart out from under the Triple Tree’s crossbeams, the executioner could now launch his victims into eternity using a single unaided hand. As such, the trapdoor’s release mechanism effectively projected an ideal, one that affirmed the value of minimizing the expenditure of human energy necessary to set it in motion as well as the time elapsed between that expenditure and its intended result, death of the condemned. However, and in spite of the sheriffs’ assurances that “the unhappy objects” would be put “out of pain in much less time than was usual at Tyburn,” Newgate’s trapdoor did not in fact expedite expiration of the condemned. Because the distance of the drop remained somewhere between two and three feet, the primary cause of death continued to be, as it had been for over a millennium, asphyxiation caused by strangulation. Largely because the science of the human body in the late eighteenth century was considerably less developed than was the science of mechanics, whatever innovations were incorporated within this new machinery of death did not extend to the point of intersection between human bodies and the proximate cause of death, the noose. “Dancing at the end of a rope,” these loci of protracted pain could not help but discomfit the state, deriding its pretensions to perfect calculability and efficiency in the administration of violence. The Arithmetical Body Politic The last person to be hanged publicly in England was the Irish Fenian Michael Barrett, who, in 1868, caused the deaths of fifteen people by blowing up a wall of Clerkenwell Prison in an unsuccessful bid to rescue his comrades. Newspaper accounts indicate that he died after repeated convulsions, his “protruding tongue and swollen distorted features discernible under the thin white cotton covering, as if they were part of some hideous masquerading” (quoted in Gatrell 1994, 46). On May 29, two days after Barrett’s execution, Parliament passed the

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Act to Provide for the Carrying out of Capital Punishment in Prisons; and, on September 8, Alexander Mackay, an eighteen-year-old coffeehouse servant convicted of murdering his master’s wife, was the first person to be hanged behind the walls of Newgate.15 Many who favored the abolition of public hanging did so on grounds that essentially recapitulated those advanced when Tyburn was abandoned. Echoing Skinner and Turner, for example, Lord Chancellor Cransworth argued that the privatization of executions “would put a stop to the saturnalia which occurred on the occasion of every execution in the Metropolis” (quoted in Cooper 1974, 168). Translating the desire for tranquil streets into a universal moral imperative, one member of Parliament declared that public hangings were “a disgrace not only to civilization but to our common humanity” (quoted in Gatrell 1994, 589). Just how exactly this practice undermined the cause of civilization was clarified when the Daily Telegraph, invoking a notion of progress that sat well with the humanitarian sensibilities of liberal reformers, insisted that this “fragment of medieval barbarism” must now come to a halt (quoted in Gatrell 1994, 589). The charge of anachronism, it should be emphasized, was directed not at hanging per se, but rather at the crowds whose attendance was now construed not as the assertion of a collective political right, but as the expression of an unseemly appetite for sordid amusement: “It was not a question,” one MP insisted in 1864, “between privacy and publicity, but whether the community should call together a mob of the lowest character, acted on by a greedy and craving curiosity of the most savage nature, or should, on the other hand, make provision that the last solemn act of the law should be performed with solemnity, gravity, and decency” (quoted in McGowen 1994, 280). A more intriguing brief on behalf of hanging’s privatization was offered by Home Secretary Gathorne Handy in his rearticulation of an argument first advanced by Henry Fielding in 1751: “If Executions,” Fielding had recommended, “were so contrived, that few could be present at them, they would be much more shocking and terrible to the Crowd without Doors than at present, as well much more dreadful to the Criminals themselves, who would thus die in the Presence only of their Enemies; and where the boldest of them would find no Cordial to keep up his Spirits, nor any Breath to flatter his Ambition” (1975, 124). In much the same vein, Handy suggested, the “mystery and indefinite-


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ness” of executions conducted behind closed doors would surely contribute to the cause of deterrence, for “the criminal class have a greater dread of death on a private than on a public scaffold” (quoted in Gatrell 1994, 592). For many, however, it was precisely the “mystery and indefiniteness” of “private” executions that explained their opposition to the 1868 act. Not merely the “criminal class,” but law-abiding citizens as well, had good reason to believe that secret executions violated the people’s right to witness the punishments they ostensibly authored and, perhaps more important, eliminated one of the more significant impediments to the abuse of governmental power. The abolitionist Eclectic Review summed up this objection as follows: The necessity which now exists for displaying before the public every exercise of the power of life and death is unquestionably a check upon the State. . . . We could not safely entrust the power of secret extermination to the State because of the likelihood that the power would be abused by over-exercise, by unconcern and by official hardness of heart. Not only should we suspect that many were hanged who ought not to be, but we should also suppose that many were not hanged who were sentenced to die. (Quoted in Cooper 1974, 69) These concerns, presupposing that power’s visibility is as essential to liberty as is its impartiality, did not go entirely unanswered. Specifically, the 1868 statute required that the jailer, the chaplain, and the prison surgeon attend all executions (although attendance by justices of the peace within the jurisdiction of the prison was optional); left the admission of relatives of the prisoner and other unofficial persons (e.g., representatives of the press) to the discretion of the sheriff; and required that the body of the deceased be examined by a surgeon whose declaration of death was to be signed by the sheriff, the jailer, and the prison chaplain. As a result of these provisions, the character of the “public” present at executions shifted dramatically, as the heterogeneous throngs at Tyburn and the smaller but still diverse crowds outside Newgate were supplanted, almost entirely, by a minute circle of homogeneous officeholders. Given the vested interest of these agents in denying any mishaps that might undermine their credibility, the pens of the press

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effectively became the eyes of the public. However, following several lurid newspaper accounts of executions gone awry, the presence of reporters was strongly discouraged by the Home Office; and so, after 1888, in the vast majority of cases, the only information issued at the close of an execution consisted of a terse notice to the effect that the affair had proceeded “without a problem and that death was almost instantaneous.” To the extent that such deaths were no longer susceptible to rival readings generated by unofficial eyes, it proved ever easier to sustain the categorical distinction between the acts of violence committed in the name of the law and those punished by it; and to the extent that the condemned could no longer address an assembled multitude and so participate in fashioning the public meaning of their own deaths, it proved ever easier for officials to insure that the state’s voice alone was heard. By moving executions within Newgate, in short, what was once the universal right to impose the death penalty within the Lockean state of nature was at last expropriated, consolidated, and sealed behind locked doors. It is important to emphasize, however, that this statutory accomplishment could not have been realized had the path to this end not been paved long before. As David Garland (1985) has demonstrated in considerable detail, the English state’s efforts at internal pacification advanced dramatically between 1780 and 1850. Key was replacement of the decentralized network of parish constables by a professional police force. The first full-time, paid, uniformed, and hierarchically organized police force was created in London and its environs in 1829; and, in 1856, the County and Borough Police Act made it compulsory for all communities to do the same. At about the same time, the central government adopted a deliberate policy of encouraging uniform prosecution of offenses in an effort to displace informal webs of discretionary social control; and, in order to try the rapidly growing number of cases, created a salaried magistracy, thus rendering largely irrelevant the parochial system of unpaid justices of the peace. Not surprisingly, it was during these same decades that the haphazard system of local jails and houses of corrections was supplanted by a system of penitentiaries, ultimately under Home Office control; and, in 1857, the national government began to compile statistics on criminal offenses throughout England, complete with detailed information on different types of criminal conduct as well as the number of acquittals, convic-


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tions, and forms of punishment administered for each (see Gatrell 1990 and Philips 1980, 1983). Roughly concurrent with hanging’s privatization, which served to rationalize the political context of law’s violence, was a series of technical improvements aimed at rationalizing its administration. Most noteworthy in this regard was the work of William Marwood, who first served as executioner in 1874. For much of his inspiration, although he publicly disavowed such indebtedness, he turned to Ireland. Conventional wisdom credits the Irish with invention of what eventually came to be known as the “long drop,” a fall whose purpose was to cause a quicker death by dislocating the uppermost cervical vertebrae, thereby separating the spinal cord from the brain stem. This end was occasionally achieved using the short drop, especially when someone elected to jump from Tyburn’s cart before it was removed, but the Irish were the first to make this an intended desideratum as opposed to an accidental by-product. Typically, in Ireland, drops ranged from ten to seventeen feet; while those lengths did sometimes hasten death, too often they did so by causing decapitation rather than cervical dislocation. Some progress in overcoming this defect was made, following consultation with Ireland’s leading surgeons, through experimentation with various locations for the knot, including the occipital, the subaural, and the submental. But it soon became apparent that no amount of tinkering with the knot’s placement could substitute for more precise calculation of the optimal distance of the drop; and so, after trying various lengths, Marwood eventually concluded that a fall of approximately eight feet would typically do the trick. In time, Marwood’s trial and error efforts prompted hanging’s most sublime moment of rationalization, as the past’s haphazard attempts to respond to local problems were supplanted by a deliberate program of centralized state action. Specifically, in 1886, Secretary of State Richard Assheton Cross appointed a committee “to inquire into . . . the existing practices as to carrying out of sentences of death, and the causes which in several recent cases have led either to failure or to unseemly occurrences, and to consider and report what arrangements may be adopted (without altering the existing law) to ensure that all executions may be carried out in a becoming manner without risk of failure or miscarriage of any sort” (Report of the Committee 1886, n.p.). In an attempt to navigate between hanging’s Scylla and Charybdis, that is,

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slow strangulation and instantaneous decapitation, the committee requested that calculations be made as to the most desirable length of the drop to be afforded convicts of different weights. After considerable research involving a dynamometer and sacks filled with varying amounts of sand, the committee prepared a table predicated on its assumption that 1,260 foot-pounds of energy would most often cause cervical dislocation but not decapitation, and hence that division of this number by the weight of the condemned, measured in stones or pounds, would dictate the correct length of the drop, measured in feet and inches (see table 1). The construction of this table, whose terms “may be fully depended upon to produce instantaneous loss of consciousness and the speedy death of even the most robust” (1886, x), marks a significant transformation in the character of liberalism’s reason of state. Much like an actuarial table, its cells presuppose that the heterogeneous population of England demonstrates predictable regularities that can be codified in quantitative terms. As such, this table participates in an immanent reconfiguration of the character of the violence inflicted by the liberal state. In speaking of executions performed behind Newgate’s walls and in accordance with this table’s imperatives, I cannot reproduce something analogous to Hogarth’s Idle ’Pren-

TABLE 1.

Scale of Drops

Weight of Culprit Stones 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Pounds

Drop

Energy Developed (foot-pounds)

98 112 126 140 154 168 182 196 210 224 238 252 266 280

11′5″ 10′0″ 9′6″ 9′0″ 8′2″ 7′6″ 6′11″ 6′5″ 6′0″ 5′7″ 5′3″ 5′0″ 4′8″ 4′6″

1,119 1,120 1,197 1,260 1,258 1,200 1,259 1,258 1,260 1,251 1,250 1,260 1,241 1,260

Source: Report of the Committee to Inquire into the Execution of Capital Sentences (1886).


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tice or the schematic diagram of Skinner and Turner. This is literally so because the state’s lethal instrumentalities are now hidden from view; but it is also metaphorically true in the sense that this table’s arithmetic of the body politic engenders its own sort of invisibility, as concrete relations of domination, including acts of state violence, are reconfigured as reified correlations among so many things differentiated only in the terms provided by modern physics. Adoption of this table also facilitates the consummate irony, as the expropriator is himself expropriated. If the hangman, as I have argued, was one of the principal instruments with which the early absolutist state in England sought to wrest the means of violence from its competitors, ecclesiastical as well as secular, adoption of this table went a long way toward transforming this agent into a dispensable technician. After complaining that “the whole of the details of the execution are practically in the hands of the executioner,” the committee of 1886 recommended a standardization of the diameter and materials of hanging ropes, a standardization of scaffold structures, and even a standardization of the method of fashioning nooses (vi).16 Here, once again, it was Marwood who demonstrated an uncanny knack for rendering himself and his occupational kin obsolete. Into one end of his rope he worked a brass eyelet; through that eyelet the opposite end was passed in order to form a running noose, and that noose was secured under the condemned’s jaw with a leather washer. As the art of noose tying thereby came to an abrupt halt, yet another human skill, once passed through generations from master to apprentice, was reconfigured in the form of an inanimate artifact. This progressive dispossession reached its logical culmination in 1890 when the central government began to supply a new rope for each execution and to burn each coil once its work was done. Doing so, the state simultaneously destroyed a potential source of revenue for the hangman as well as a tangible artifact, which, if preserved, might sully the abstract purity of its violence. In bringing this section to a close, I wish to remind the reader that the changes charted in this chapter were never without their specifically English peculiarities and hence that the category of rationalization must always be read in culturally specific terms. To cite but one example, and contrary to what one might anticipate given Weber’s account of the bureaucratization of the modern world, the English hangman never became an official in the strict sense of the term. In an ill-fated

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gesture in that direction, in 1785, the sheriffs of London provided a uniform to a hangman by the name of Dennis; apparently unimpressed, he sold it to a fortune-teller. A hundred years later, James Berry wrote a letter to the 1886 committee in which he argued that, rather than working on commission, he should receive a fixed salary of £350 per year for service in the office of executioner. This request for regular compensation was denied, as was Berry’s recommendation that a formal office be created for those serving in this capacity. Until the time of capital punishment’s effective abolition in 1964, the Home Office continued to solicit applications from persons wishing to act as hangmen. Those deemed suitable were trained at Pentonville, and their names, usually numbering six, were forwarded to local sheriffs as the need arose. Never, in short, did the conduct of hanging in England become something other than a part-time occupation compensated on a piecework basis. Postmodern Barbarism In September 1953 the Royal Commission on Capital Punishment presented its report to Parliament. Among other things, the commission concluded that, of the various methods of execution, hanging best satisfied the criteria of humanity, decency, and certainty. By the term humanity, the commission meant, first, that executions should be “free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension” and, second, that the act of execution “should produce immediate unconsciousness passing quickly into death” (Report of the Royal Commission 1953, 253). The term certainty was intended to pose the question of which “method is most likely to avoid mishaps, due either to the complexity of the machinery or to an error of the executioner” (255). Finally, with the term decency, the commission indicated its expectation that executions should be conducted with “decorum,” and that they should “avoid gross physical violence and should not mutilate or distort the body” (255). Informed by the Home Office that “there is no record during the present century of any failure or mishap in connection with an execution,” the commission concluded that hanging, “whose special merit was formerly thought to be that it was peculiarly degrading,” could now be “defended on the ground that it is uniquely humane” (1953, 247).


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It is difficult to know exactly what to make of this endorsement of hanging. A cynic might contend that what one finds here is a masterly exercise in obfuscation, one that turns on its sly reference to the absence of any record of mishap or failure. After examining the skeletons of thirty-four victims of judicial hangings conducted between 1882 and 1945, Deryk James and Rachel Nasmyth-Jones (1992), forensic pathologists at Sheffield, determined that in only six cases did cervical dislocation, the so-called hangman’s fracture, occur. However, official autopsy reports stated that death was wholly or partially caused by cervical fracture in nearly half of these cases. Given this discrepancy, we have good reason to wonder how many of the total number involved the “instantaneous loss of consciousness and the speedy death” promised by the committee of 1886. That question grows more intriguing when we learn from Harold Hillman, director of the applied neurobiology program at the University of Surrey, that contrary to popular perception hanging does not immediately arrest respiration and heartbeat: “They both start to slow immediately, but whereas breathing stops in seconds, the heart may beat for up to twenty minutes after the drop” (quoted in Abbott 1994, 263). If that is so, then it may be that what introduction of the long drop accomplished was not instantaneous death, but rather the immediate appearance thereof (an appearance no doubt facilitated by the leather straps Marwood invented in order to pinion the arms and legs of the condemned). Once removed from public view, absent the sort of public verification that might otherwise make it possible to contest official proclamations of unqualified success, hangings become a phenomenon of the depoliticized imagination. Simultaneously salutary and sorry is the English public’s refusal to acquiesce in the state’s relentless efforts to transform Tyburn’s unruly rabble into an orderly aggregation of Cartesian solipsists for whom hanging is a spectral affair constructed in the privacy of individual psyches. Following the move behind Newgate’s walls, as many as thirty thousand persons would sometimes assemble in front of Madame Tussaud’s Exhibition on Baker Street on days when celebrated criminals were to be executed. There, “quest[ing] for realism in a parody of itself” (Bender 1987, 251), the crowd would struggle to catch a glimpse of the Chamber of Horrors, augmented by life-sized wax statues of the murderer about to be dispatched as well as the executioner commissioned to accomplish this end.

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Arguably, what one sees here is a sort of popular resistance to rationalization’s meaning-eviscerating dynamic, which Weber seeks to capture with his concept of disenchantment. That concept leads us to expect that hanging’s subordination to the imperatives of instrumental rationality will slowly strip it of the ritualistic and ceremonial elements that once saturated public hangings; gone, for example, is the construction of hanging as a drama of salvation, an opportunity for Tom Idle to confess his sins before the chaplain seated next to him on the cart bound for Tyburn. As formal rationalization demonstrates its irrationalism, as the claims of bureaucratic proceduralism and technical efficiency displace whatever substantive values once situated the act of hanging within more comprehensive textures of collective meaning, execution becomes ever more entirely a matter of making a live body dead, and that within an ever more secularized culture whose members increasingly think of death as nothing other than the cessation of biological existence. Yet, when the people of London congregate near Madame Tussaud’s, they desperately seek to reclaim some public meaning from the state, something more politically vital than its formulaic declaration. That effort assumes a form, however, that leaves unchallenged what Weber calls “passive democratization,” that is, the processes whereby realization of liberalism’s promise of formal equality and procedural justice entails a substantive “leveling of the governed in opposition to the ruling and bureaucratically articulated group, which in its turn may occupy a quite autocratic position, both in fact and in form” (1978, 2:985). Their resistance, should it be dubbed such, takes place in the company of a noose that does no work, a body that suffers no pain, and a hangman who can never err.

Chapter 4

The Metaphysics of the Hangman

Prior to introduction of the electric chair in 1890, hanging was the principal and, more often than not, the exclusive method of state-sponsored killing in all of the United States (Drimmer 1990). Indeed, of the nearly twenty thousand documented executions conducted since the founding of the first permanent English settlement at Jamestown, close to two-thirds have been accomplished by this means (Macdonald 1993). Today, however, this practice stands poised at the brink of extinction. Eliminated by Congress for civilians convicted of federal crimes in 1937 and by the army in 1986, hanging is still prescribed in only four states.1 The members of this quartet have performed a total of three hangings since its revival, following a twenty-eight year hiatus, in 1993. Yet even these states now prescribe lethal injection as their default method of execution; and, in all likelihood, they will retain hanging as an option only so long as it is necessary to foreclose legal challenges by persons sentenced under earlier statutes. In short, the noose is quickly passing into obsolescence and so, like the rack and the gibbet, is destined to vanish—except perhaps as a curiosity of historical inquiry and museum exhibition. What are we to make of the virtual demise of state-sponsored hangings? To offer a partial response to this question, in this chapter, I explore a neglected dimension of what is arguably the most sustained judicial inquiry into hanging ever conducted in the United States. In February 1994, a bitterly divided eleven-member panel of the Ninth Circuit Court of Appeals rejected Charles Campbell’s challenge to hanging’s constitutionality (Campbell v. Wood, 18 F.3d 662 [9th Cir. 1994]); and, on May 27 of that same year, after he was subdued by means of pepper spray, dispossessed of the homemade weapon he had 93

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inserted into his rectum, immobilized on a wooden restraining board, and hauled to the gallows, Campbell was hanged by the neck until dead. Campbell v. Wood, and especially the impassioned dissent submitted by Stephen Reinhardt, has attracted considerable attention from students of capital punishment (e.g., Denno 1994, 1997; Nagy 1994; Hood 1994–95; Adolf 1995; Harding 1996; Beard 1997; Sarat 1999a). That decision, however, is not my object of concern. Rather, my concern is with the evidentiary hearing conducted on remand by the federal district court in Seattle one year prior to Campbell. In that four-day hearing, the question of whether hanging is a form of cruel and unusual punishment is curiously absent; and it is precisely because the gritty realities of hanging are not reworked within the rarefied discourse of constitutional principle that this hearing’s transcript can tell us much about why, today, the rope is so problematic as an instrumentality of state violence. In the first section of this chapter, I elaborate one dimension of the theoretical context that informs my reading of the evidentiary hearing’s transcript. That dimension is informed, first and foremost, by the work of Friedrich Nietzsche. In his Twilight of the Idols, Nietzsche coins the phrase from which this chapter’s title is taken. Although Nietzsche himself never expressly elaborates these claims, I suggest that his oblique reference to the “metaphysics of the hangman” (1964, 42) effectively evokes a cluster of presuppositions whose taken-for-granted intelligibility is indispensable to our contemporary practices of punishment. These include, to cite but a few, belief in discrete selves who can be considered the autonomous causal sources of the acts for which they are punished; the conviction that the law’s technical instrumentalities, including the noose, are so many neutral means that inertly do the bidding of its officers; and the assurance that legal discourse does not constitute either the law’s agents (e.g., legislators, judges, police officers) or those they compel (e.g., criminals), but merely gives expression to the decisions of the former and affixes so many labels to the misdeeds of the latter. Together, these presuppositions help sustain our collective construction of state-sponsored killing as the technical effectuation of a dispassionate command authored by an impersonal legal order, as it is brought to bear on a freely willing subject who deserves what he (or, in rare instances, she) ultimately gets. To call this conceptual matrix into question, again drawing on


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Nietzsche, I suggest that the reified fiction we dub “the law” is an internally complex and always at least potentially unstable relational artifact. Among others, its mutually constitutive ingredients include human bodies, a specialized discourse, and the technical instrumentalities that mediate between the law’s pronouncements and the bodies they speak of and to. If the law is to sustain the conditions of its own authority, it must maintain a coherent and mutually reinforcing relationship among these various elements. To do otherwise is to fail to sustain the hangman’s metaphysic and so to risk disclosure of the law’s status as a contingent and therefore contestable artifact. That the noose is now so often characterized as a “barbaric relic” indicates, I take it, that the contemporary conduct of judicial hangings jeopardizes the law’s achievement of a happy concordance among its corporeal, technological, and discursive ingredients.2 But what is it exactly about the noose that engenders this histrionic response? That question, I suggest in the chapter’s second section, cannot be answered absent a return to Weber’s concept of rationalization, which I introduced in the previous chapter. The attempt to rationalize the infliction of capital punishment in the United States, I argue, is informed by and effectively projects an image of the technically perfect execution, one that is defined by the certainty of its results and, more specifically, its accomplishment of an instantaneous and so painless death. The impossibility of realizing that ideal, caused in the last analysis by the peculiarities of recalcitrant human bodies, renders hanging ever less able to participate in a satisfactory coalition of the law’s principal ingredients and so ever more anachronistic; and that, in turn, cannot help but unsettle the legal order’s struggle to secure its own legitimacy. Under these circumstances, when practical accomplishment of the hangman’s work subverts the metaphysic to which he is committed, the noose must in time be eliminated from the law’s arsenal. In this chapter’s final and longest section, I turn to the evidentiary hearing that preceded Campbell v. Wood. It is here, in the law’s trenches, that the state seeks to perfect its articulation and defense of the metaphysics of the hangman, as that metaphysic is informed by the ideal of unqualified rationalization; and it is here that Campbell’s attorneys seek to contest the state’s ability to live up to that self-representation. More precisely, the state must seek to persuade the presiding judge that the Washington State protocol governing the conduct of judicial hang-

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ing eliminates the possibility of error and so guarantees a pain-free death, whereas the attorneys for Campbell must seek to undermine the state’s pretense to practical certitude and so make apparent, if only as a hypothetical possibility, the body in pain. As I suggest in my concluding remarks, this strategic contest poses an awkward dilemma for the presiding magistrate, Judge Coughenour. On the one hand, if he endorses the state’s pretense, he must at the same time embrace an archaic instrumentality of violence that cannot easily be folded within the rationalizing narratives of the late liberal state and so cannot help but undermine the authority of its law. On the other hand, if he rejects the state’s pretense, he will effectively proclaim its inability to sustain the seamless conjunction of technological, discursive, and embodied ingredients that is essential to those same rationalizing narratives and hence to the law’s legitimacy. Negotiation of this troubled terrain generates an opinion, one that Nietzsche would no doubt relish, that saves the noose, but does so at the cost of embarrassing the law. Unraveling the Noose The coherence of the metaphysics of the hangman requires postulation of discrete autonomous legal subjects, equally discrete but perfectly heteronomous means of violence, and a representationalist view of language as a composite collection of labels for these disjoined entities. The relational ontology with which I hope to trouble that metaphysic takes its starting point from Nietzsche’s contention, in his Genealogy of Morals, that “there is no ‘being’ behind doing, effecting, becoming; ‘the doer’ is merely a fiction added to the deed—the deed is everything” (1967a, 45). A proper explication of this ontology and its relationship to law would require an extended recapitulation of Nietzsche’s reading of the origins of our basic moral categories including responsibility, autonomy, free will, conscience, guilt, and so forth. From this larger complex of ideas, I abstract only those that are indispensable to the present argument. Nietzsche’s claim about the fictional nature of doers allegedly standing apart from and behind their deeds is predicated on his more general ontological conviction, first, that everything that exists does so in a condition of perpetual becoming; and, second, that the interconnections each sustains with others are essential to the character of all.


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Nothing in the world, in other words, has any intrinsic features, for all existents are thoroughly constituted by their interrelations with, and differences from, everything else. Every existent, we might say, is an event, and every event’s distinguishing features are inseparable from the other events that condition and articulate those features. What an existent is, in sum, is the confluence of events in which “it” relationally participates. Because all existents are so constituted, it is only via an act of suspect abstraction that any one “thing” is unambiguously distinguished from the other events to which “it” is now related. What we call “subjects” and “objects” are, therefore, so many fictions invented to stand as foundations, as grounds, for what we then take to be the essential attributes of these substantial beings. Our felt compulsion to manufacture such fictions, Nietzsche proposes, is a product of grammatical structures, which, in accordance with the logic of subject and predicate, impel us to speak not simply of effects and their configurations, but also of “things” that bear such properties; we are seduced, that is, by “our grammatical custom that adds a doer to every deed” (1967b, 286). However, if it is true that every such thing is merely “the sum of its effects” (296), then there is no good reason to posit its separate existence as the antecedent substance that produces those same effects. “The properties of a thing are effects on other ‘things’: if one removes other ‘things,’ then a thing has no properties, i.e., there is no thing without other things, i.e., there is no ‘thing-in-itself’” (302).3 (Although I will not elaborate the point, I trust it is clear that, although the conceptual apparatus differs somewhat, the point Nietzsche is making here is essentially congruent with that which I made in the preceding chapter when I rejected Weber’s reified representation of the state in favor of a reading of it as a relational effect.) If Nietzsche’s argument on this score has merit, then we ought not to assume the existence of a unified subject who, as determinate substance, somehow grounds the various deeds it performs (just as we ought not to assume the existence of a unified state that is the sovereign author of its deeds). And yet that assumption is crucial to the coherence of our legal order. If the metaphysics of the hangman is to function as it should, legal discourse must fashion and sustain through time and in space those allegedly autonomous selves who can be deemed unequivocally culpable for the (mis)deeds they freely commit. Elaborating the

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discursive relationship between the hangman’s ontology and the ethical premises that undergird the law, Nietzsche writes: Our usual imprecise mode of observation takes a group of phenomena as one and calls it a fact: between this fact and another fact it imagines in addition an empty space, it isolates every fact. In reality, however, all our doing and knowing is not a succession of facts and empty spaces but a continuous flux. Now, belief in freedom of the will is incompatible precisely with the idea of a continuous, homogeneous, undivided, indivisible flowing: it presupposes that every individual act is isolate and divisible. . . . Through words and concepts we are still continually misled into imagining things being simpler than they are, separate from one another, indivisible, each existing in and for itself. . . . Belief in freedom of the will— that is to say in identical facts and in isolated facts—has in language its constant evangelist and advocate. (1986, 306) Accordingly, if it is to justify the pain it inflicts, the legal order must abstract the individual subject from the constitutive relational contexts “it” inhabits and then, retrospectively, identify the autonomous will of that deracinated being as the first cause of the harm for which it is blamed and then punished. Only a subject so framed is fit for the hangman’s noose. While it might at first appear that claims of this sort can only be made of those caught within the law’s punitive snares, as I indicated in my discussion of J. L. Austin and the conventions that guarantee the efficacy of all performative utterances, they are equally true of those who posture as the law’s authoritative agents. If he is to fulfill the imperatives of the hangman’s metaphysic, in pronouncing sentence on Charles Campbell, the presiding judge in Snohomish County Superior Court, Dennis Britt, must appear as a sort of sovereign voice, an unconditioned author whose words, backed by the state’s coercive power, initiate a linear chain of cause-and-effect connections that culminate when an anonymous employee of the Washington State Penitentiary triggers the steel mechanism that releases the trapdoor below Campbell’s feet. But, of course, that appearance is itself a complex production in the sense that the judge in question, qua judge, is altogether a creature of the legal apparatus within which he is installed. So located, Britt


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is indeed an authoritative speaker, but the scripted sentences he utters are themselves so many historically saturated reiterations, so many conventional citations of a language for which he is now the designated mouthpiece. In sum, to quote Judith Butler, Judge Britt is the unwitting beneficiary of “the operation of that metalepsis by which the subject who ‘cites’ the performative is temporarily produced as the belated and fictive origin of the performative itself” (1997, 49). The metaphysics of the hangman also presupposes a very specific construction of the law’s objects and, of special concern here, its technological means of violence. Better still, it presupposes a very particular way of deflecting attention from those means. To begin to specify that way, consider the following editorial claim, included in the UnionBulletin of Walla Walla, where Campbell was executed, shortly after the state of Washington switched from hanging to lethal injection as its default method of execution: “When an inmate is sentenced to be executed, death is the punishment. The process or method of execution is not, in itself, the punishment. . . . It is essentially irrelevant—so long as the method of execution is deemed to be humane—how the condemned prisoner is put to death” (August 23, 1996, 4). Implicit within this quotation is the conviction that the instrumentalities of state violence are so many neutral means whose import is entirely dictated by the autonomous subjects who employ them. On this account, as so many acquiescent servants who do only what is demanded of them, such means do not actively participate in giving significant form to the reality that is an execution (and, by extension, the law more generally). If death is the end result no matter what means are employed, then the specific technologies employed to extinguish life do not merit independent inquiry (except, as this editorial concedes, when their employment imposes gratuitous pain and so raises Eighth Amendment concerns). That this representation of the state’s instruments of violence appears superficially plausible testifies to the fact that, as a rule, the manufactured things we lump together within the reified category of “means” are wedded to linguistic and human beings within familiar situations whose customary imperatives specify how the members of each class of being are to relate to the other two. Within the context of a routine drug bust, for example, a pair of “handcuffs” is unproblematically intelligible because this largely scripted event normatively speci-

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fies its role vis-à-vis the other parties to this unfolding incident. Barring a contravention of that routine (for example, by a suspect who proclaims that he finds deployment of this device titillating), there is little chance that this apparently clear and distinct entity will dissolve into referential instability and so come to be regarded as a puzzle rather than as a “mere” means. In sum, as so many artifactual analogues to the self-contained egos that employ them, made “objects” customarily acquire a taken-for-granted status analogous to the “things” of nature, and so appear to invite their own construction in the terms mandated by the hangman’s metaphysic. That construction, however, says little about the true nature of these things, but much about their stabilization within so many streams of routinized conduct. All regimes worthy of the name seek to transform the contingent relations called into being by the intercourse of linguistic, embodied, and technological artifacts into congealed facts, inexorable features of the political landscape to which all simply accommodate. To quote Butler (1993) once more: Insofar as power operates successfully by constituting an object domain, a field of intelligibility, as a taken-for-granted ontology, its material effects are taken as material data or primary givens. These material positivities appear outside discourse and power, as its incontestable referents, its transcendental signifieds. But this appearance is precisely the moment in which the power/discourse regime is most fully dissimulated and most insidiously effective. (251) More specifically, the authority of the complex artifact we call “the law” is at least in part a function of its apparent incontestability, the inability of those whom the hangman interpellates to unravel and so to recognize as optional the dense network of connections that cements words to bodies, bodies to things, things to words. The law’s stabilization as an authoritative complex is most self-confident, in other words, when its discourse, its bodies, and its technological instrumentalities are so seamlessly interwoven that none can undermine the others’ contribution to the production of juridical truth. At least some measure of the grim satisfaction generated by an execution that proceeds without a hitch is, therefore, a function of its achievement of an exemplary syn-


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thesis of the law’s basic ingredients. The coroner can place a period at the end of a death sentence only when the law’s word becomes flesh, and it can achieve such incarnation only when the means of violence have realized and made real the full sense of that proleptic judicial performative. When, however, the ordinarily unmarked relations among these constituents come unfastened, as they sometimes do, the law’s facts may begin to dematerialize and, in consequence, announce their status as so many made-up things, so many fictions. This can happen for any number of reasons, ranging from those that do not undermine a legal order in any fundamental way (e.g., routine evasion of income tax provisions), to those that harbor the potential to render visible truths the law’s agents would rather keep hidden (e.g., an electrocution that goes awry), to those that threaten its very existence (e.g., a state’s failure to maintain monopolistic authority over determination of who may and who may not engage in acts of permissible violence). Accordingly, if we are to understand how and why the noose now disturbs the law’s matter-of-fact authority, we must first reject the metaphysics of the hangman and, more particularly, its representation of the means of violence as so many neutral and self-contained tools deployed by and brought to bear on so many autonomous and self-contained subjects. Instead, we must adopt a theoretical perspective that highlights the legal order’s status as a more or less stable relational artifact whose basic constituents—legal discourse, human bodies, and the means of violence that materially manifest the law’s claim to legitimate force—may or may not facilitate that order’s quest to secure the conditions of its own facticity and hence its presumptive authority. In insisting that the three elements I have abstracted from “the law” are mutually constitutive, I mean to suggest that the law should never be reductively equated with any one; and, to say much the same thing in reverse, that none should be denied its crucial role in making the law what it is. The law, for example, cannot be exclusively identified with the human bodies whose conduct it regulates, for their identities cannot be grasped apart from the discourse that constitutes them as specifically juridical subjects. Never, to illustrate, is the state’s use of physical force a matter of unmediated violence between extradiscursively naked human bodies. While the “long arm of the law” may sometimes materialize as a human limb, as in a resisted arrest, that

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appendage is never an arm per se. Rather, it is the arm of a police officer; and it is only as a creature of the discourse that identifies it as such that it can serve as a means of legitimate coercion, an instrumentality invested with the authority to halt another member of the body politic. To think otherwise—to think that the body exists antecedent to and independent of its construction by the historically variable categories of legal discourse—is to permit the law to deny its complicity in fashioning the bodies its officers claim to discover already fully formed. Such considerations, pressed to their logical terminus, might tempt us to adopt the sort of desiccated discursivism that equates the law with the sedimented meanings of legal language. But to consider the rhetoric of law as its exclusive constituent, to think of the hangman’s rope as merely a trope, is to forget that the terms of this discourse are insufficiently materialized absent the tangible things, whether human or otherwise, they inform. In making this claim, I do not mean to deny what I have already acknowledged, that is, that the act of pronouncing Charles Campbell guilty and sentencing him to die simultaneously presupposed and occluded the discursive processes through which he was fashioned into an autonomous legal subject who, precisely because he was so constituted, could be held uniquely responsible for the deeds ascribed to him. However, I do mean to remind us of the simple but nontrivial point that, absent the palpable body that was so shaped, the execution of his death sentence, some twelve years after it was imposed, would bring little relief to the kin of Renae Wicklund, her eight-year-old daughter, Shannah, and her neighbor, Barbara Hendrickson, all of whom bled to death after Campbell slashed their throats with a kitchen knife in order to avenge his conviction for firstdegree assault and sodomy in 1976. It is the concrete technologies of political violence, whether taking the form of handcuffs, service revolvers, barred cells, or whatever, that mediate between the law’s authoritative pronouncements and the human bodies of which and to whom they speak. To ignore these instrumentalities, as legal scholarship does when it confines itself to constitutional controversy about the hypostatized legal category of “capital punishment,”4 is to permit this reified abstraction to ride roughshod over the grim particularities of state-sponsored killing and, in so doing, to act as the hangman’s unwitting accomplice. On the contrary account I mean to recommend here, what the law essentially is


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cannot be dissociated from the hood placed over Campbell’s head, the shackles fastened around his ankles, the oversized eyehook securing the rope that ends in a noose encircling his neck. Each of these things, I wish to suggest, is not the artifactual equivalent of one of Michel Foucault’s docile bodies, but rather an immanent ingredient within a rationalized performance whose contribution to the constitution of political authority will be effectively reconfigured should any of its other components be significantly reshaped. In attempting to redeem the conceptually disenfranchised in this fashion, in suggesting that the means of violence be given legal standing, it is not my aim to endorse some sort of inverted materialist reductionism. Recall my contention that no participant in the constitution of law’s reality can be invoked without simultaneously calling on the others as well. The manacles around Campbell’s wrists, for example, gesture back toward their human creators and, more specifically, to the distinctive configuration of their bodies; in shape as well as function, those restraints are in effect metal surrogates for the hands that would otherwise find it necessary to leash his unruly arms. At the same time, this device is what it is only because it has been rhetorically stabilized via the name, one term within the more comprehensive vocabulary of bureaucratized justice, that identifies its proper task within the network of events that is a “judicial hanging.” Were it to be situated within the complex of events we dub a “lynching,” these metal ovals would become something quite different. What we discriminate as a specific means of violence, say, a noose, is an abstraction, an apparently self-sufficient entity, torn from a heterogeneous field of events that is itself more or less stabilized by the obduracy of convention. If, as I have recommended here, that “object” is necessarily constituted by its relations to other existents within this field, then we must look beyond its apparently fixed edges in order to determine what “it” truly is. And yet the spatial dynamics suggested by the term “beyond” will mislead unless we recall that every “object” is at one and the same time a matter of “now and then,” a mobile affair with a history that is equally essential to its identity. A noose cannot be understood, therefore, unless it is relocated within its constitutive context, and that context, as I shall suggest in the next section, is itself subjected to genealogical inquiry. In sum, as things whose effects are dispersed hither and thither in time and space, we should perhaps say that

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the means of violence “happen.” When they appear not to happen, when they appear as the unproblematic referents of factual discourse, much like the legal subjects required by the hangman, we should recall that this too is a political fiction whose accomplishment testifies to the consolidation of very specific relations of force. The Impossible Dream Thus far, my invocations of the hangman’s metaphysic have been primarily metaphorical in the sense that they have referred not to the literal practice of hanging, but to the cluster of interrelated presuppositions that sustain our belief in the law’s rightful authority to punish. In this section, I seek to show how the form of punishment from which this metaphor is derived becomes problematic when its technological means come to appear discordant with other ingredients of the liberal legal order. To begin to specify the nature of that discordance, recall how in the preceding chapter I suggested that the rationalization of hanging in England achieves its apogee in the construction of a mathematical table correlating the weight of the condemned and the length of the hangman’s rope. Recall also that appended to this table was the committee’s assurance that executions conducted in accordance with its imperatives “may be fully depended upon to produce instantaneous loss of consciousness and the speedy death of even the most robust” (Report of the Committee 1886, x). That hubristic guarantee, joined by scientific specification of the means of its accomplishment, articulates the quixotic goal toward which all subsequent Anglo-American judicial hangings have necessarily aspired. Absent this table, neither the Ninth Circuit’s consideration of Campbell v. Wood, nor the execution of Campbell (who at 223 pounds was dropped a distance of five feet seven inches), would have assumed the form it did. During the evidentiary hearing that preceded both, the superintendent of the Washington State Penitentiary in Walla Walla acknowledged that the Field Instruction Manual (Washington State Department of Corrections 1992) detailing the procedures to be followed in the event of a hanging had been copied verbatim from a 1959 manual of army regulations titled Procedure for Military Execution. That manual in turn includes a table that is nothing other than a slightly modified version of that generated by the committee of 1886. While the


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range of weights is a bit narrower than in the English chart and the distance of the drop prescribed for any given weight is a bit shorter, the two tables as well as the metaphysics they presuppose are otherwise identical; together, they stand as consummate symbols of the rationalized terrain occupied by all of the parties involved in contesting the fate of Charles Campbell. That terrain, however, is not nearly as untroubled as the pristine cells of these tables might appear to suggest. As this capsule history intimates, progress in the science of judicial hanging effectively came to a halt a little over a century ago. That such stagnation cannot help but prove problematic in a nation that prides itself on relentless technological innovation was recognized long before Campbell: “The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner.” So declared David Hill, governor of New York, in his annual message to the legislature in 1885 (quoted in Campbell v. Wood, 692), as he called for creation of a commission to explore more modern instrumentalities of execution. In 1888, tacitly acknowledging that the discursive, technological, and embodied constituents of capital punishment no longer cohered, the members of that commission complained that the gallows “is the only piece of machinery that has stood stockstill in this era of progress. There it stands, the same clumsy, inefficient, inhuman thing it was when it first lifted its gastly [sic] framework into the air of the dark ages.” Moreover, the commissioners asked, should not the contemporary state seek to discover a way of killing that does “not so very closely resemble the revolting act which the criminal expiates?” (Report of the New York State Commission 1888, 35). That is to say, if the state is to succeed in neatly differentiating its acts of violence from those it regulates and punishes, which is an essential condition of its claim to monopolistic control over the means of rightful force, should it not develop a technique that is uniquely its own? Should it not secure a method whose dependence, for example, on the abstract reason of science unambiguously denotes an absence of the passions, the caprices, and the pathologies that animate common murderers? In New York, and shortly thereafter in most other states as well, the fruit of this line of inquiry was adoption of electrocution as the pre-

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ferred method of accomplishing the hangman’s ends. Matters proved more complicated in the comparatively small number of states that, for one reason or another, elected to retain the noose, as did England. For them, the 1886 table, or some variant of it, has had to bear virtually all the burden of rationalization, a task that in other states has been assumed by the adoption of ever more refined instrumentalities of dealing death. Accomplishment of that end has entailed extracting the noose from the complex of premodern collective rituals that had hitherto afforded it sense. This artifact has then been resituated within a structure of secularized bureaucratic procedures, so many complements to the table’s austere logic, in the hope that doing so would mitigate its refusal to cohere satisfactorily with distinctly modern understandings of the right relationship between state power and human bodies. A detailed history of this transformation, as it played itself out in New York prior to its shift from hanging to electrocution, has been nicely told by Michael Madow (1995); here, I recapitulate only that which is necessary to set up my reading of the Campbell evidentiary hearing. Prior to 1835, Madow notes, the legislature in New York prescribed the mode of killing, that is, hanging, but provided no procedural guidance to county sheriffs concerning the actual accomplishment of this end. This void was filled by the rituals constitutive of public hangings, rituals whose performance sought to deploy the body of the condemned to tell a political narrative about state power as well as a religious narrative about the hereafter. Echoing Foucault, Madow suggests that the typical antebellum hanging in New York was a richly ceremonial civico-religious spectacle. It was designed and staged by political officials and clergymen whose purpose it was to display their own authority, strengthen communal order, reaffirm central values, and deter wrongdoing. For this reason, the spectators heard a great deal of talk, both from clergymen and the condemned man himself, about mortality, about the sole power of God to redeem the sinful, about the need for repentance, and about the “slippery slope” that carried men and women from small vices to vile crimes. This moral and religious discourse was not a marginal or ancillary element of the event: It was essential in upholding the social meaning of hanging. In the early nineteenth century,


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a hanging was more than a utilitarian crime-control measure or a retributivist settling of accounts. It was also a drama of salvation and a ritual of reconciliation between the criminal and the community, which had to be publicly enacted and declared. (1995, 479–80) However, beginning in the 1830s, but gaining much greater momentum in the second half of the nineteenth century, the conduct of executions in New York and most other states was transformed in three interrelated ways, first, as they were moved behind the walls of penitentiaries; second, as science and state joined forces in an effort to devise what were invariably billed as less painful methods of killing; and, third, as the rituals that afforded meaning to capital punishment performed in public were supplanted by the imperatives of technical routine. By the end of that century, consequently, the body of the condemned had been more or less denied its participation in any larger cosmological or political drama and so was well prepared for its imminent reconstitution along the thoroughly profane lines dictated by the table prepared by England’s 1886 committee and subsequently exported to the United States. As that body is reconfigured as a quantitatively measurable mass, an entity that is otherwise indistinguishable from all other condemned bodies, it begins to anticipate the utopian construct that haunts today’s hangmen. To make sense of this dream, recall Weber’s argument about the irrationality that lurks at the heart of rationalization. On his account, the advance of formal rationalization becomes substantively irrational when instrumental technique becomes an end unto itself. When that happens, the net effect is to “disenchant” the world or, in the case of capital punishment, to strip the body of the values that once sustained the dramatic spectacle of premodern hangings. Rationalization’s advance thus intimates the possibility of an execution in which the body is so thoroughly evacuated of substantive meaning that it can no longer generate any independent capacity to inform, let alone contest, its incorporation within the machinery of state violence or, better still, an execution in which the body effectively disappears altogether. Granted, the technical procedures that now give form to an execution can themselves assume a ritualistic cast, as when they serve to soothe the conscience of a public whose support for the death penalty may

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well be conditional on its status as a sanitized abstraction. But at best, to borrow terms from Herb Haines, the ends secured by such bureaucratized ritual are “defensive” rather than “demonstrative”: “Rather than a demonstration of power, the modern orchestration of death lends assurance that everything is in order, everything is human and civilized and that we aren’t, after all, barbarians” (1992, 126). The fact that such reassurance is sometimes produced does not compromise my claim that, within the modern bureaucratic state, execution becomes an end in itself in the sense that its telos is nothing other than the efficient accomplishment of life’s termination. The reverie of a perfectly rationalized execution stipulates the criteria contemporary state agents must seek to meet in order to secure felicitous agreement among its discursive, technological, and embodied ingredients. I shall mention only two here, each of which will prove differentially realizable depending on the method employed. The first is that of celerity. As Madow (1995) points out, antebellum executions were leisurely affairs typically involving formal prayer sessions, lengthy processionals to the gallows site, and often extensive speeches on the part of various officials as well as the condemned. Distinctively modern executions, precisely because they are not ritualized affairs whose time-consuming purpose is to evoke and reinforce substantive collective norms, seek to extinguish life as rapidly as possible or, in the best of all possible worlds, instantaneously.5 That goal, however, is akin to Zeno’s paradox; it may be ever more closely approximated, but it can never finally be achieved. In 1953, for example, as I noted in chapter 3, England’s Royal Commission on Capital Punishment recommended retention of hanging as the nation’s principal method of execution, at least in part because it was best able to satisfy the norm of celerity: “the time that elapses between the entry of the executioner into the cell” of the person to be hanged “and the pulling of the lever is normally between 9 and 12 seconds” (Report of the Royal Commission 1953, 250). Less than four decades later, that boast received its categorical comeuppance when Fred Leuchter, the preeminent builder of execution equipment in the United States, announced in his Modular Electrocutions System Manual that, “under ideal circumstances, an inmate should lose consciousness in 4.16 milliseconds (1/240) of a second, 24 times faster than the subject’s conscious nervous system can record pain” (quoted in Denno 1997, 355). But even this bit of hyperbole, so


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often mocked by the gruesome realities of botched electrocutions, betrays an anxiety that can never be altogether relieved. For if capital punishment has no meaning beyond its own accomplishment, and if technical efficiency is the sole criterion that can be invoked in assessing its success, then the conduct of executions will be perpetually haunted by the ideal of a death that is, quite literally, timeless. What will forever frustrate the achievement of such transcendent perfection is, of course, the recalcitrant human body. So long as it remains an unfortunate but indispensable party to state killing, capital punishment will be teased by a phantasm, conjured up by the promise of rationalization unbound, that it can never quite dispel. What Leuchter’s bravado also intimates is the dream of an execution that involves no pain, and that is a second criterion imposed upon modern executioners by the relentless march of rationalization. Narrative accounts of early-nineteenth-century executions, Madow argues, displayed what to us must seem a surprising indifference to the duration and intensity of the pain suffered by the executed; or, if that pain was a subject of discourse, it was rendered intelligible via its incorporation within a narrative of sin and salvation (see also McGowen 1987). Enfolded within ritual, the anguish of the condemned always gestured beyond itself, whether above toward hierarchies of power transcending the temporal or below toward eternal punishments whose horrors rebellious mortals can only dimly grasp. By the close of the nineteenth century, however, the experience of pain was dislocated from these more global contexts and located squarely within the disenchanted body of the individual subject. To an ever greater extent, accordingly, the primary if not the only questions asked following an execution were how quickly had the condemned died and, correlatively, how much suffering had he or she endured in the process. No doubt, part of the explanation for the increased salience of these questions stems from what Nietzsche (1967a) considered the West’s ever more pronounced inability to endure pain, especially among the members of its more refined classes. But it is equally important to recognize that the goal of a painfree death is an immanent part of the dream of a perfect execution. Once again, if bodily suffering has been stripped of whatever substantive meaning it once communicated, and if the absence of pain is what now principally distinguishes the law’s punishments from torture, and if, therefore, the aim of capital punishment is to extinguish life instanta-

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neously, the persistence of appreciable pain cannot help but pose awkward questions about its import, questions that cannot be answered within the paradigm furnished by the logic of rationalization. Pain’s irrational tenacity, its refusal to bow before the requirements of rationalized killing, cannot help but disturb the law’s struggle to secure a seamless coupling of its technological and embodied components. That trouble is aggravated by pain’s resistance to discursive formulation, for this has the effect of fixing attention on precisely that which the state must seek to occlude: the concrete instrumentalities of violence and the palpable injury they do to human bodies.6 Pain, argues Elaine Scarry (1985), is peculiarly nonreferential in the sense that, alone among interior states, it has no object beyond the body toward which it gestures (in contrast, say, to desire which is always desire for something). For this reason, when we seek to make sense of another’s pain, often we do so by identifying it metaphorically with either its external cause (e.g., a weapon) or with its embodied sign (e.g., a wound). “Physical pain,” Scarry points out, “is not identical with (and often exists without) either agency or damage, but these things are referential; consequently we often call on them to convey the experience of pain itself” (1985, 15). Weapon and wound, then, are kin in the sense that both concretize and so render intelligible what is otherwise unseen because objectless. To see the pertinence of Scarry’s argument about pain and its resistance to discursive formulation, which is the final ingredient in the theoretical matrix that informs my reading of the Campbell evidentiary hearing, recall that contemporary execution practice is committed to the ideal of a killing that involves what the Supreme Court, in In re Kemmler (136 U.S. 436 [1890]), labeled the “mere extinguishment” (447) of life. The palpable metaphors, whether wound or weapon, that help us to objectify the interior experience of pain when we find ourselves suffering bodily distress turn politically problematic when they offer visible confirmations of the reality of the pain imposed on and suffered by the condemned. In these terms, I would suggest, should we understand the invention of technologies of execution—most notably, that of lethal injection—that leave no trace on the body. Such marks—for example, the abrasions left by a noose’s strictures—are so many signs that cry out for interpretation, for ascription of meaning to the pain they appear to signify. Lethal injection, by way of contrast, is to be com-


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mended not because it (allegedly) kills humanely but because it is most successful at leaving the body unsigned. The contemporary executioner, that handmaiden of the disenchantment that accompanies rationalization’s advance, must seek to fashion a corpse that thwarts intersubjective acknowledgment of the pain it endures and, in consequence, frustrates all attempts to fashion a narrative that speaks of anything but that body’s expiration. Or, to put this in Weberian terms, the contemporary state must seek to reinforce its claim to monopolistic control over disposition of the means of legitimate violence by eliminating any signs that might otherwise invite challenges to its hegemonic construction of that violence’s sense. If lethal injection is superior to hanging because it produces no evident wound on the body’s surface, so too must the needle, qua weapon, be deemed superior to the noose. Just as handcuffs are intelligible in virtue of their tacit structural reference, first, to the shape human hands must assume in order to restrain another and, second, to the distinctive contour of the wrists to be bound, so too is the noose meaningful in virtue of its unspoken reference to the shape and structure of a human neck as well as the oval formed by the hands that, absent this technological surrogate, are required in order to strangle it. As the noose metaphorically connects the human source of the harm it is to do and the human being it is to hurt, it effectively objectifies the pain that must be obscured, if not denied altogether, in an era of aggressive rationalization. The needle, by way of contrast, gestures toward the body’s interiority, where it will do its work imperceptibly. To the extent that pain can in this way be deprived of its visible signs, to that extent can the contemporary executioner secure a (comparatively) unproblematic synthesis of capital punishment’s discursive, technological, and embodied ingredients. Foucault, I think, was not quite right when he claimed that, with the disappearance of public executions, there followed a “slackening of the [law’s] hold on the body” (1979, 10). What the law’s imaginary ideally requires, at least with respect to capital punishment, is not a looser hold on the human frame, but rather the wholesale eradication of corporeality. That, I would suggest, is the fantasy that informed the editorial, published in the January 11, 1889, issue of Georgia’s Greensboro Herald-Journal, that celebrated New York’s adoption of electrocution on the grounds that, with this method, there was “no last speech; no mock

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heroism; no great curious crowds gathered at the death, but the criminal vanishes from the sight of men as swiftly and completely, as though the earth had opened and sucked him in” (4). Only such a miraculous disposal, one that electrocution was thought to intimate and lethal injection more closely approximates, can unconditionally realize the dream of today’s hangman. That ideal will forever be frustrated, however, by the obdurate realities of animate corporeality; and in that sense the real anachronism in capital punishment is not so much the noose, but the human body. Yet, because the noose is an optional constituent of the law’s machinery, whereas the guilty are not, it has been the primary target of rationalization’s efforts, whether by folding its coils within a network of bureaucratic proceduralism or, better still, by dispensing with it in favor of some less problematic method. My concern in the next section is not with the latter strategy but with the former. How will the state, in response to one who exploits its dilemma by refusing to choose the needle, even though that option is statutorily available, minimize the noose’s capacity to highlight the imperfect union of its discursive, embodied, and technological elements? Decerebrate Twitching One year after the U.S. Supreme Court warned the Ninth Circuit that additional delay in Charles Campbell’s case would be subject to rigorous scrutiny, but one year before he was finally executed, an evidentiary hearing was conducted by the federal district court in Seattle, under the direction of Judge John C. Coughenour, in order to determine whether hanging constitutes cruel and unusual punishment. In this strategic contest, the attorneys for Washington State seek to show that the conduct of judicial hanging can be rendered compatible with the metaphysics of the hangman and, more particularly, that it can be folded within a rationalized version of that metaphysic. To do so, they must domesticate the noose by demonstrating that it is not an atavistic remnant whose deployment is incompatible with the norms of the contemporary liberal state. The attorneys representing Campbell seek to contest that construction, principally by demonstrating that judicial hanging is indeed anachronistic in the sense that it cannot be rendered consistent with the state’s dream of a perfect execution. The task for the state’s attorneys is complicated by the fact that they must defend a


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method of execution that, for over a century, has been rejected as “barbaric” by one after another political jurisdiction. The task for Campbell’s attorneys is complicated by the fact that they must articulate their claims in the discourse preferred by their opponents, that of modern science, especially as that language is given more specific form by physicians and physicists. In sum, while the former are haunted by the nagging memory of bodies “dancing at the end of a rope,” the latter find it necessary to construct the steps of that dance as so much “decerebrate twitching” (Campbell v. Blodgett, No. C89–456C, W.D. Wash. [1993], 151–52). As these opposed constructions suggest, the foremost site of conflict within the evidentiary hearing is the human body, as it is to be fitted within this particular death-dealing apparatus. But whose body, we might ask, and what is the nature of that body? One of the more striking features of the hearing’s 574-page transcript is the utter absence of the body of Charles Campbell, and this is so both in the sense that he is not physically present at the hearing and in the sense that he is almost never the subject of its discourse. The specter of Campbell appears once when Judge Coughenour reminds the hearing’s participants that its purpose is not to retry him on the charge of murder, a second time when one of his attorneys invokes his name as a hypothetical subject of a possible future hanging, and a third time when, toward its close, another states: “Until the end of time I will try to keep him alive” (Campbell v. Blodgett, 542). Because this final invocation comes at the close of hundreds of pages of mind-numbing clinical discourse about human anatomy and its susceptibility to injury, this desperate effort to conjure up the reality of Charles Campbell qua embodied human subject cannot help but appear sentimental, an irrelevant humanistic intrusion that distracts from the real question at hand. For the body at issue here is not this or that body, but rather the body that has been rendered suitable for incorporation within the procedural confines of the field instruction manual prepared by the Washington State Department of Corrections. There is, however, one named body that makes a sustained appearance at this hearing, and that is the corpse of Westley Allan Dodd, who, as I indicated in chapter 2, in 1993 achieved the distinction of being the first person to be executed by hanging in the United States in twenty-eight years. As I shall show in this section, much of the evi-

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dentiary hearing can be read as a contest over the construction of Dodd’s corpse, as attorneys on each side offer rival readings of the markings left by the noose on his neck as well as by the autopsy reports that relate these external signs to his body’s interior. The preliminary point I want to make here is that the being dubbed “Dodd” appears in the hearing not as a subject who has been killed by the state, not even as a corpse per se, but as an ambiguous precedent whose precise import is up for grabs. His dead body is accorded the privilege of evidentiary reality only insofar as it can help solve the legal dilemma now before the court; and, in that sense, although unique because it bears a name, the abstract form of corporeality ascribed to Dodd differs only in degree from that which predominates throughout the hearing. Both sides to the hearing, in short, accept the construction of the human body that accompanies the triumph of rationalization. For each, the body appears as a homogeneous reification that is altogether deindividualized in the sense that it is stripped of all the distinctive markings that otherwise enable us to identify unique physiognomies with particular human subjects. To wit: “The force applied to the neck or force transmitted to the structures of the neck is dependent on two variables, the weight of the body as it drops and then how far it drops. The further it drops the more velocity there is” (Campbell v. Blodgett, 235). To note this construction’s undifferentiated character is not to say that the hearing’s body is always the same. But it is to say that the distinguishing features it is permitted to display (e.g., the number of pounds it weighs) are only those that can be understood through reference to the scientific discourse that is the condition of its appearance; and in that sense, to quote a penitentiary spokesperson, any given hanging “is a math problem” (Japenga 1989). The body incorporated within this equation can appear to be something other than a discursive construction, that is, it can appear to be an antecedently real object that is simply described by this discourse, only because its terms have now achieved the sort of facticity, a taken-for-granted status, that no longer characterizes the noose. Bilateral acceptance of the body qua secularized finite biological entity bearing no meaning beyond itself dictates the issues that will prove of moment in this hearing. That hearing, as I read it, revolves around two interrelated issues, each of which centers on the question of whether human bodies and the instrumentalities of violence necessary


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to a judicial hanging can be successfully incorporated within the rationalized ideal intimated by the executioner’s table of body weights and rope lengths. The first issue of strategic contest concerns the question of certainty, and the second concerns the question of pain. In a nutshell, whereas the state’s attorneys must render persuasive the table’s implicit claim to eliminate the possibility of error and so guarantee a death that entails no detectable suffering, Campbell’s attorneys must seek to trouble these claims by undermining the table’s pretense to practical certitude and so rendering the body a site of possible pain. With respect to the first issue, that of certainty, the state secures its most convincing articulation of the ideal to which it aspires when the chief medical investigator of New Mexico, Ross Zumwalt, answers the following garbled question: “Doctor, do you have an opinion with a reasonable degree of medical certainty regarding whether a person that is hanged in accordance with the Washington state hanging protocol, whether that person’s death or whether that hanging will result in a swift and painless death?” (Campbell v. Blodgett, 239). Affording expression to the hangman’s metaphysic, Zumwalt’s unambiguous affirmative response links in direct linear fashion a discrete cause, that of hanging, to an equally discrete effect, that of death. What enables cause and effect to be joined with such confidence are the regulations that, in conjunction with the table correlating weight and drop length, envelop the body and the state’s means of violence within the folds of rationalization. Those regulations specify, for example, that the rope is to be soaked and stretched in order to remove all spring, that the noose proper is to be fashioned by wrapping its running end around the shank of the rope exactly six times, that the resulting ligature is to be fitted snugly around the condemned’s neck and behind the left ear, that restraints are to be placed on his or her legs and arms just prior to the drop, and so forth and so on. Echoing the guarantee provided by the 1886 committee when it assured Parliament that adherence to the terms of its table would cause a “speedy death of even the most robust,” the checklist prepared by the Washington State Penitentiary just prior to the hanging of Dodd promises that all nonhuman components of its killing machine will be ready for “flawless operation” (Execution Procedures and Assignments, Washington State Penitentiary, adopted December 3, 1992). In one sense, the state’s appeal to these procedures, the conditions

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of its claim to certainty, is complicated by the paucity of experienced hangmen, of a class of agents whose embodied skills can translate these abstract imperatives into concrete practice. As Delaware’s chief deputy attorney general noted not too long ago, and apparently without tongue in cheek, “hangmen are a dying breed” (quoted in Denno 1994, 683). For this reason, it becomes all the more important that the attorneys for the state establish the expert qualifications of every witness it calls. In the absence of a contemporary equivalent of William Marwood, their certified competence in the fields of forensic pathology, biomechanics, and traffic safety engineering must stand as a surrogate for the sort of craft-knowledge that was once conveyed from master to apprentice. Yet, in another sense, the absence of qualified hangmen serves the interests of the state all too well. For if its agents, to quote from the majority opinion in Campbell v. Wood (1994), can successfully demonstrate that their “reliance on the Field Instruction to perform judicial hanging obviates the need for employing a specific person trained to perform the execution” (688), then the state can do away with yet another reminder of the complicity of embodied human beings in the act of killing. Just as condemned bodies are transformed into so many homogeneous entities whose sole differentiating feature is the number of pounds they weigh, so too is the persona of the hangman absorbed within the abstract regulations that first efface and then displace him. Equally central to the state’s claim to certainty is its effort to distinguish the conduct of judicial hangings from its accidental and suicidal kin. For example, in questioning Boyd Stephens, the chief medical officer for San Francisco, the state seeks to draw an unambiguous line of demarcation between its hanging of Dodd and the inexpert suicide of an unnamed individual who died of asphyxia after attaching a rope, noosed about his neck, to a refrigerator that was not itself fixed in place, sliding off a window ledge, and falling approximately eighteen feet. In amateurish cases of this ilk, as in instances of accidental hangings, it is impossible to measure the precise amount of kinetic energy generated by the drop, and so no evidence elicited from such cases can shed any light on or, for that matter, cast any doubt on the state’s proclamation of its capacity to produce a speedy and painless death. Zumwalt again: “In suicidal hanging most of the forces have to do with the constriction of the neck and the blockage of the blood flow either to the brain or


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from the brain and to a minor degree some obstruction of the air flow. In contrast, in judicial hanging, where there is a drop associated with a constriction around the neck, there’s a blunt force injury to the neck which can, and generally does, damage the deep structures of the neck, including the spinal column, the bones of the neck and the ligaments connecting the bones of the neck and also to the brain stem and spinal cord itself” (Campbell v. Blodgett, 226–27). Mistakes, in sum, are a contingent rather than an inevitable accompaniment of this way of killing. They occur when laymen attempt a task that is better left to professionals, albeit in this instance professionals whose competence is vested not in acquired skills, but in scrupulous adherence to abstract procedures that, at the time of Dodd’s hanging, had never been tested by the army from whose manual they were cribbed. In yet another effort to fix all judicial attention on these formal procedures and so obscure anything that might mar the undefiled universe they self-referentially project, the state seeks to have excluded from the hearing all evidence of bungled hangings conducted in England or in the United States prior to Washington’s adoption of its present protocol. “We would submit to the Court,” asserts the state’s chief attorney, “that if the issue pending was whether past executions were in violation of the Eighth Amendment perhaps some of those documents would be admissible and would be relevant if that were the issue. But what the Court has got to decide is not whether past executions were in violation of the Eighth Amendment, but whether future executions, utilizing judicial hanging, is cruel and unusual punishment” (Campbell v. Blodgett, 6). The net result of this argument is to confine the evidence deemed germane to an assessment of Washington’s protocol to the one instance of hanging conducted in accordance with it: “The best evidence of—probably the best evidence of what will happen under Washington’s policy—is the example of Westley Allan Dodd. Everyone agrees that Mr. Dodd died very swiftly, humanely and that there was respect for his dignity” (548). Reducing its data set to a single body, one whose voice it stilled, the state seeks to render literally impossible any challenge to its epistemological and technological pretensions. The foremost aim of Campbell’s attorneys, by way of contrast, is to hoist the state with its own petard. Their task, that is, is to take seriously the state’s self-representation and then raise doubts about its capacity

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to make good on the ideal to which that representation commits it. To do so, Campbell’s counsel seeks to undercut the claim to certainty professed by the state, first, by expanding the number of identifiable corpses admitted into the courtroom and, second, by demonstrating that the state’s protocol cannot accommodate the individual physiological variability that, in the last analysis, will dictate just how any given person expires at the end of a rope. In both, his attorneys focus on the irreducible and obdurate reality of the particular, that which cannot be unproblematically subsumed beneath the homogeneous form of corporeality validated by the rationalized state. To accomplish the first of these two moves, Campbell’s attorneys begin by establishing the historical linkages joining Washington’s field instruction manual to the army manual of 1959 from which its procedures were adopted, and from there to the English committee of 1886 from which the army’s table is ultimately derived. To do so is in effect to affirm the relevance of all judicial hangings, successful as well as botched, conducted in accordance with the procedures specified in these three texts. While this is a potentially promising move with respect to hangings performed in England, it might appear less so with respect to those conducted in the United States since, as I have already intimated, the total number of persons executed under the terms of the army protocol is zero. In fact, however, this is a highly propitious move since it enables Campbell’s principal attorney, James Lobsenz, to raise questions about the state’s altogether uncritical appropriation of and exclusive reliance on the army’s guidance. When Lobsenz asks the superintendent of the penitentiary in Walla Walla why she elected to adopt the army’s procedures, Tana Wood responds artlessly: “Because it came from the military” (Campbell v. Blodgett, 178). But does this imply that the indirect authority Washington State hopes to derive from the military’s reputation for efficiency in the art of killing is ultimately predicated on nothing other than so much unconfirmed speculation? That this suspicion may be well founded is corroborated when, later in the hearing, one mathematically inclined witness indicates that he has been unable to determine why the weight and length correlations in the penitentiary’s table depart from those contained in that of the committee of 1886 and, still more important, that he has been unable to derive from the former table the formula that was presumably used in determining its numerical values: “It’s not based on foot


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pounds of energy alone or on kinetic energy and it does vary if you try any of those formulas from one end of the chart to the other” (423). Mocking rationalization’s claim to render all things transparently calculable, the emblem of Washington’s claim to scientific certainty now begins to appear as something akin to an enigma. Although Campbell’s attorneys do succeed in establishing these troublesome links between Washington’s table and its predecessors, they are able to derive very little benefit from this minor coup. Almost without exception, Judge Coughenour rules in favor of the state when its attorneys contend that strangled and decapitated corpses generated by methods that are not in every particular identical to those stipulated in the Washington protocol are inadmissible: “Absent a showing of circumstances of a hanging that are demonstrably the same as the Washington protocol,” he explains, “in my view it’s not relevant” (Campbell v. Blodgett, 320). Evidence excluded by the district court on these grounds include photographs of a New Mexico execution in 1901 that resulted in an apparent decapitation; newspaper accounts of an execution in 1910 in Washington that left the condemned thrashing at the end of his rope, begging to be raised up and dropped anew; the testimony of Clinton Duffy, who, while serving as warden of the prison at San Quentin, witnessed a judicial hanging that resulted in death by protracted asphyxiation; and research materials compiled by Watt Espy, an independent scholar who has reviewed virtually all published accounts of executions performed in America since 1608. The cumulative effect of these rulings is to purify the court record of whatever embarrassing evidence had not already been rendered unavailable by the state’s agents via other methods. Specifically, prior to 1993, no autopsy was ever performed on anyone hanged in Washington; no official records were kept of the seventy-three hangings conducted by the state since it expropriated this function from the counties in 1904; and, from 1909 to 1982, Washington State had on its books an obscenity statute that provided for the prosecution of any person who published a detailed account of an execution conducted within its borders. In a desperate but ultimately misdirected effort to counter the state’s monopolistic control over information concerning its consummate act of premeditated violence, Campbell’s attorneys call Father Alvin Harry to the stand. A Jesuit priest from Jamaica, Father Harry claims to have ministered to seventy-one casualties of judicial hanging

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since 1968. Not surprisingly, the state’s attorneys immediately seek to exclude his testimony on the grounds of irrelevance, since he cannot say whether the procedures that govern hangings in Jamaica are identical to those specified in Washington’s protocol. Indeed, his sole claim to qualification stems from the fact that, immediately after the trapdoor is sprung, his official duty consists of sprinting down the steps of the gallows in an effort to anoint the culprit as a Catholic before he or she expires. Should he arrive too late for that purpose, his task then becomes one of administering what the court reporter, with peculiarly liberal irony, transcribes as the condemned’s “last rights” (Campbell v. Blodgett, 377). Surprisingly, Judge Coughenour permits Father Harry to testify, although that testimony soon backfires. It does so at least in part because Harry’s grasp of English is poor and so much of the exchange between him and Campbell’s attorneys takes shape as a halting and sometimes comical effort to establish the precise sense of the questions put to him as well as the answers they elicit. Still more fundamental deficiencies emerge when he is asked, “When you would run down the steps, did you ever see the person who had been dropped through the trap door, the man who had been hanged, did you ever see any movement of his body?” Although this is clearly the moment when the true horrors of hanging are finally to be given voice, the best that Father Harry can muster is the claim that, on two or three occasions, he witnessed “violent trembling” (380). In a hearing whose discursive terrain is already well defined, one in which only the languages of law, natural science, and professional medicine are deemed credible, it takes little effort on the part of the state’s attorneys to discredit the somewhat bewildered Father Harry. Far more damaging than his lack of proper epistemological authority, however, is his description of the instrumentalities of Jamaican state violence. As Father Harry explains, judicial hangings in Jamaica take place in an open courtyard; the principal implement employed is known as a “jackass” rope (so-called because it is used to lead burros through fields); the body of the condemned falls into a dirt pit; and the corpse, absent an autopsy, is then transported in a cart to the prison yard, where it is buried by none other than Father Harry himself. The net effect of this testimony is to sharpen and reinforce the state’s distinction between amateurish and professional hangings. It may be true that Washington lacks an experienced hangman, and it may be true


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that it compensates for this absence by relying on bureaucratic procedures that have been tested only once. These departures from the imperatives of rationalization lose much of their capacity to embarrass, however, when contrasted invidiously with killings that appear so demonstrably primitive. In short, the Washington protocol is the unintended beneficiary of Father Harry’s testimony, and that benefit is all the more powerful because, in this instance, it draws its force not from its opposition to suicidal or accidental hangings, but to a crude form of state-sponsored execution. The second effort made by Campbell’s attorneys to undermine the state’s claim to certainty involves contesting the contention, implicit within the executioner’s table, that the variable of weight exhausts the features of embodiment that are relevant to a judicial hanging. “It makes sense,” asks one, “does it not, to adjust the drop length based upon specific anatomical differences that a person might have?” (Campbell v. Blodgett, 425). Such differences, which can be caused by age, disease, exercise, drug and alcohol abuse, as well as countless other factors, all have a bearing on the capacity of the spine, the musculature, and even the arteries of the human body to facilitate or frustrate the summum bonum of judicial hanging, that is, the fracture that dislocates the upper cervical vertebrae and then snaps the spinal cord in two. Reluctantly acknowledging these complications, the protocol adopted shortly before the execution of Dodd includes a provision stipulating that a medical “examination will be conducted of the inmate to determine any special problems, i.e., collapsed veins, obesity, etc. that may affect the execution process” (Washington State Department of Corrections 1992). But this terse concession to individual variability, which grows ever more problematic when it is recognized that many of the relevant variables (e.g., bone mineral density) cannot be determined via a standard medical examination and when it is learned that the inspection in question is to be conducted not by a physician but by a physician’s assistant, fails to specify how, if at all, these idiosyncratic features are to modify the uniform imperatives of the table. Opting for one horn of the dilemma before her, at first, the penitentiary superintendent indicates that under no circumstances will she depart from the drop length specified by the table (Campbell v. Blodgett, 183–86). However, only moments later, grasping the other horn, she insists that it is within her authority to respond to the peculiarities of this or that body

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by departing from the table’s dictates in any way she deems appropriate (190). As the promise of rationalism is subordinated to the claims of unlimited discretion, discretion that is itself predicated on little more than guesswork, the state’s characterization of hanging as a “math problem” rings ever more hollow. The net result of such concessions may be to suggest a truth that the late liberal state cannot afford to admit: there are finite limits to the extent to which the human body can be rendered a fully rationalized participant in a judicial hanging. For example, placement of the knot on the left side of the neck near the chin has the effect of throwing the head backward and so increasing the likelihood that the condemned’s spinal cord will be severed. But this asymmetrical placement almost certainly will not occlude both carotid arteries, and so, should the hangman’s fracture not occur, may leave the victim acutely conscious of the process of dying. The achievement of instantaneous unconsciousness, which is not at all certain under the Washington protocol, is best accomplished by placing the knot squarely at the back of the neck so as to achieve an even distribution of pressure on right and left arteries. But that position will throw the condemned’s head forward and so almost certainly will not cause cervical dislocation. By the same token, elimination of the rope’s elasticity enhances the likelihood of achieving the hangman’s fracture, but it does so at the cost of increasing the likelihood of decapitation. “You’re walking a very fine line here,” observes Allen Tencer, professor of orthopedic surgery at the University of Washington, “between having enough energy and enough force to pull things apart, but not too much to create a catastrophic, quote, injury, which would be the neck—the head actually coming off” (Campbell v. Blodgett, 490–91). As these examples suggest, the conundrums generated by the human body are additionally compounded by the fact that the causal constituents in a judicial hanging, when emancipated from the hangman’s metaphysical simplifications, are multiple and infernally ambiguous. Recall that if the law is to punish with a clear conscience, it must manufacture the clear and distinct subjects who can be found unequivocally responsible for the deeds for which they are then condemned. These subjects find their Cartesian technological equivalents in discrete instrumentalities of execution whose causal operation can be specified with equal certainty.7 This understanding is afforded apt


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expression when the New Mexico medical investigator is asked: “What, in your opinion, will be the cause of death in a judicial hanging in accordance with the Washington state policy?” To which he responds tautologically: “Well, the cause of death is the injury that leads to death, so the cause of death is hanging” (Campbell v. Blodgett, 237). What this legal-medical obfuscation hides, of course, is the fact that death will be the last effect accomplished by the combined operation of a host of mechanisms interacting in ways that, as we shall see when we turn once more to Westley Allan Dodd, cannot be fully specified even after an autopsy has been performed. These may include, to mention but a few, occlusion of blood flow to the brain, spinal shock, actual damage to the spinal cord or brain stem, asphyxiation, strangulation, and so on. As the medical examiner from San Francisco insists, “Hanging in itself is a very general term and covers any type of suspension or pressure that is applied in or about the neck. . . . Hanging represents a gamut of effects upon the neck and the structures, leading to some type of neuro or cardiogenic shock” (412–13; emphasis added). Construction of hanging in these terms, as a complex of mutually constitutive effects that thwarts our grammatically in-duced desire to posit any one as death’s singular cause, cannot satisfy the state’s urgent need for certainty. Just why that is so is made apparent when this closeted Nietzschean draws the appropriate practical conclusion from his unwitting repudiation of the hangman’s metaphysic: “I’ve said several times there are a number of variables that will always be hard to control or uncontrollable in any type of human endeavor, and when a procedure like a judicial hanging takes place, there are going to be a number of factors that are either difficult to control or cannot be controlled completely” (448). If the first major bone of contention in the evidentiary hearing circles about the issue of certainty, the second revolves around that of pain. The character of the strategic dilemma confronted by the state’s attorneys is dictated by the fact that they cannot altogether disavow the technological instrumentalities that participate in a judicial hanging. No doubt, the state can hide these artifacts, as it effectively does by prohibiting public access to the death chamber; and no doubt it can destroy them, as it did by burning the rope that was used to hang Dodd. Within the confines of this hearing, however, if only as so many dematerialized objects of legal discourse, these things must be given their due. Yet, as I

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noted earlier, a noose is problematic because it stands as a palpable objectification of the pain inflicted by the state and suffered by the condemned, and it is precisely for this reason that it is anachronistic. Much more transparently than a syringe does this irksome thing proclaim the harm it is destined to perform, thereby overcoming what is otherwise the solipsism of pain and so troubling the ideal of the rationalized hangman. The strategic task for Campbell’s attorneys, accordingly, is to aggravate this trouble by giving voice to the pain thus disclosed. The question of pain’s palpable reality takes shape, first and foremost, as a struggle over the meaning of the one corpse, all others having been denied admission, that is permitted to make a sustained appearance in this hearing. The basic context for that struggle is established by Superintendent Wood, who explains how, six minutes past midnight on January 5, 1993, Westley Allan Dodd was removed from one of two holding cells and escorted to the adjoining gallows room, how a leather restraining belt was placed around his waist and wrists, how he mumbled an apology to those assembled in the witness room below, how the curtains in the upper chamber were closed, how he was moved several feet backward to one of the chamber’s twin trapdoors, how additional restraints were placed around his ankles, as a black hood was placed over his head, how the noose was secured around his neck, how the trapdoor was sprung, using a steel release mechanism embedded in the wooden floor, how he fell exactly seven feet and one inch (because he weighed just 135 pounds), how the curtains of the chamber’s lower level were closed, and how Dodd was pronounced dead several minutes later, thereby officially completing his journey from the status of a liberal juridical subject, one whose body is irrelevant to his standing before the law, to that of a corpse, an object now exclusively identified with that same body. This inert entity, however, refuses the state’s effort to cast it in the role of a clear and distinct Cartesian object. The contest to resolve its ambiguity, to overcome its referential instability, fixes on three issues: first, how to interpret the very slight movements Dodd’s body displayed upon stopping short at rope’s end; second, what to make of the abrasion created by that rope on the right side of his neck; and, third, how to read the results of the autopsy conducted one day after his execution. The first raises questions about the relationship of bodily activity to volitional consciousness. The second invites inquiry into the rela-


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tionship between the appearance of marks on the body and the reality of suffering. And the third asks us to consider the veracity of causal connections that can only be inferred because observation of the internal harm done by external mechanisms is obscured by the opaque barrier that is human skin. Like a taunting question mark, Dodd arises from the dead in the guise of an epistemological quagmire. “Do you have an opinion,” asks the chief attorney for the state, “as to whether Mr. Dodd suffered prior to his death when he was executed on January 5, 1993?” To this question, with refreshing frankness, the medical examiner who performed the autopsy on Dodd replies: “I don’t have an opinion because, to me, just the notion of suffering is pretty open-ended. I suppose it’s a question of definition” (Campbell v. Blodgett, 321). It is precisely what Donald Reay refers to as suffering’s “open-endedness” that renders corporeal pain so well suited to the sort of legal disputation in which each side seeks to maximize its freedom to fashion reality as it will. To see how that semantic struggle takes shape in this context, let us begin with Dr. William Brady, an Oregon physician who was retained by the state of Washington for the purpose of examining Dodd immediately after his descent into the lower half of the death chamber. Asked by a state attorney just what he saw at that moment, Brady reports as follows: “When Mr. Dodd’s body dropped through the trapdoor there simply was no significant activity, there was no twisting, turning, no swinging. I carefully observed his chest and abdomen and I believe that there was one minimal effort at inspiration, breathing in, and following that, within several seconds, there may have been a small second inspiratory action” (203–4). While the body remained suspended, Brady climbed the steps of a movable staircase and, reaching beneath the two shirts worn by Dodd, laid a hand on his chest in order to determine whether his heart was still beating or his lungs were still seeking air. Detecting no movement, he confirmed this judgment with a stethoscope and, on the basis of this investigation, declared Dodd dead. What, though, is to be made of those faint efforts at inspiration? As the institutional representative of the hangman’s metaphysic, the state’s assignment is to present as certain that which no one can know for sure. Its task, that is, is to rhetorically fashion those shallow intakes, via so much expert testimony, as the involuntary motions of a body that no longer bears any traces of consciousness and so can neither

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grasp that it is being killed nor suffer any pain. The unenviable task of Campbell’s attorneys is to present those same signs as so many indicators of acute suffering and, if possible, terror. However, in the absence of a body that more dramatically invites this interpretation, the best his attorneys can do is to attempt to undermine the epistemological confidence of the state; and to do that they must introduce as evidence that which did not occur as well as that which was never seen. “The problem with describing and interpreting movements made,” says Deryk James, whose report on hangings conducted in England I cited in the final section of chapter 3, “is that with somebody pinioned it’s difficult to know whether any movement made is volitional, purposeful movements or whether it is automatic reflex activity” (Campbell v. Blodgett, 95–96). More pointedly, he might have said, the state can sustain its interpretation of these inspiratory motions only by veiling the fact that its leather restraints deprive Dodd’s body of all opportunity to say anything other than what the executioner will allow. The possibility of contesting the state’s reading of these motions is additionally frustrated by the hood placed over Dodd’s head. Not surprisingly, Tana Wood contends that, although she cannot account for its historical origins, the purpose of the hood is to protect the dignity of the condemned and to spare the sensibilities of the witnesses. For the purposes of this hearing, however, far more important is the fact that the hood denies to witnesses the facial evidence that might otherwise enable them to challenge the state’s ascription of meaning to the movements in Dodd’s chest. “If a person was hanged without a hood on,” asks one attorney, “their facial expressions, eye movement, could be some further indication of consciousness which we don’t have if the face is shielded, is that correct?” “That,” responds the medical examiner from Seattle, “becomes a problem of interpretation” (Campbell v. Blodgett, 345). To forestall the emergence of such a problem, the state deploys various technological means, including the hood and the pinioning straps, in order to manufacture the sort of body that can then be discursively offered at this hearing as an unproblematic fact, a thing whose unequivocal import is simply given. A similar but not identical issue emerges when the hearing takes up the question of the markings on the surface of Dodd’s body. Arguably, for the state, the irregular furrow etched into the right side of his neck is the most problematic evidence it must address. Dodd’s


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inspiratory efforts vanish into the realm of the dimly recalled, the unrecorded, as soon as they cease, but the groove cut by the state’s rope endures in the body as well as in the photographs taken prior to its autopsy. If the noose is an artifactual objectification of the otherwise invisible pain caused by the state’s technologies of violence, this wound is its all too visible proclamation in the flesh. In an execution by lethal injection, there is no such sign, and in the absence of a sign there is no signification and so nothing to be explained away. When the noose leaves its mark, however, it transports the hurt body, so often silenced by the irrefutable reality of pain itself, into the domain of the discursively contestable. “The body of the condemned is a text,” writes Maeve O’Connor, “that tells the story of physical punishment with brutal honesty. In the aftermath of an execution, the corpse remains to give meaning to the event. The executed body thus has potential to threaten the legitimacy of the punishment” (unpublished paper) and, by implication, the state that imposes it.8 Unable to deny the palpable presence of this mark, the state discounts its import by insisting that, because Dodd instantaneously lost consciousness when his neck snapped backward, this is a sign that says nothing. On this account, what would ordinarily be taken as a manifest indicator of felt pain, an open wound, is figured instead as a token of the state’s efficiency in bringing about the condition that renders questions of pain immaterial. To contest this reading, Campbell’s attorneys must once again appeal to that which is unseen. For reasons already indicated, absent a body that writhes, this abrasion is not easily read as a sign of acute suffering. To establish that possibility nonetheless, the lack of any comparable mark on the left side of Dodd’s neck is duly noted. At least arguably, that absence intimates that neither the supply of arterial blood nor the supply of oxygen was altogether cut off to Dodd’s brain; and if that is so, then it is not entirely implausible to speculate that he may have retained consciousness after completing his fall; and, if that is so, then perhaps the furrow on the right side of his neck can be read as pain’s obdurate residue. Because neither party to this conflict is able in any conclusive way to overcome the referential instability of this mark on the body’s surface, attention turns at last to its interior. Following the official declaration of death, Dodd’s body was stuffed into a body bag, which was then placed in an official vehicle destined for the medical examiner’s office

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on the west side of the state. To facilitate the inquiry to be conducted there, the corpse’s head was left hooded and the noose remained tightly cinched around its neck. Once in Seattle, Dodd’s remains were subjected to computerized tomography studies, magnetic resonance imaging, and finally to anatomical dissection. All were performed in the hope that these inquiries would determine the exact cause of death (which, in turn, would dictate the right reading of Dodd’s final efforts at inspiration as well as the crimson crease in his neck). For this purpose, what the state most urgently requires is definitive evidence of the hangman’s fracture, that most sublime articulation of the metaphysic he champions. Should this autopsy demonstrate that Dodd’s spinal cord split in two on impact, a simple effect caused by a singular cause, the ideals of celerity and painlessness will be as perfectly accomplished as the marriage of this method of killing and the human body will permit. Baiting the law as he did when he first “volunteered” to die and then insisted that the state hang him (as he had done with his final victim, four-year-old Lee Iseli), once again Dodd refuses to play the part required of him. What the autopsy does make unambiguously clear is that Dodd did not die as a result of cervical dislocation and spinal disjunction. What, then, did kill him? Dodd’s body will not say; and it is not at all clear that, were it to do so, it would furnish an answer that would satisfy the hangman. When asked by one of Campbell’s attorneys to specify the causal mechanism of death in Dodd’s case, echoing the claim made earlier by one of the state’s witnesses, Deryk James provides what is at one and the same time the most truthful but also the least helpful answer. Dodd, he says, “died from judicial hanging.” This answer is truthful because it refuses the temptation to abstract a single biomedical cause from this complex of effects, but it is also quite unhelpful insofar as it fails to provide the state with any means of overcoming this ambiguity. When pressed to indicate what did in fact happen to the uppermost portion of Dodd’s spine, James proceeds: “Well, that leaves a sudden pulling on the spinal cord. Now, that may have occurred. There was a small amount of bleeding seen around the cord, but despite microscopic sections and gross examination, no injury was seen to the cord, but that doesn’t exclude an injury being present. It’s a problem that if somebody dies shortly after an injury of this sort, then there would be no morphological markers of it having occurred”


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(Campbell v. Blodgett, 104). But if at least some of death’s pathways do not always leave such markers, then in the last analysis specification of its causal mechanisms must be largely speculative. Not surprisingly, therefore, when James is asked whether Dodd’s autopsy can be used to define how death will occur in future hangings, he responds in the negative, thereby denying the state the epistemological confidence it requires in order to sustain its strong predictive claims about its ability to kill Campbell swiftly and painlessly. Even the state’s own expert witness, Donald Reay, cannot help but confess that, more often than not, the best medical science can do by way of explaining death is to “reason back,” after the fact, “to the best explanation of what happened, what probably happened” (315). But if the state can do no better than the owl of Minerva, then the promise of rationalization, which presupposes science’s ability to articulate exhaustively and conclusively the precise relationship between this particular technology of killing and the human frame, is either so much pretense or an outright sham. Propping up the Scaffold In his closing argument on Campbell’s behalf, James Lobsenz contends that Washington State “came close to pulling Mr. Dodd’s head off,” and he then confidently declares that there is a “25 percent risk that this procedure will produce a slow, torturous and lingering, painful death” (Campbell v. Blodgett, 544, 541). In light of the evidence produced at this hearing, this pseudoscientific prediction seems neither more nor less plausible than the state’s claim that Dodd was executed with surgical precision and that the hanging of Campbell is certain to produce the same happy result. Unable to revel in this condition of epistemological ambiguity, what is a judge to do? What Judge Coughenour must do, of course, is to fashion this inconsistent array of competing claims, generated within a broader political context whose imperatives he himself did not create, into so many authoritative findings of fact and conclusions of law. That this context is now vexed, that what was once taken-for-granted is now contestable, is indicated by the very occurrence of this evidentiary hearing: “Can one,” Coughenour asks, “read into the fact that the issue [of hanging’s constitutionality] has never been presented to a federal court in over 200 years of history that no litigant ever thought it was an issue

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that was worth presenting because the answer was so clear?” (Campbell v. Blodgett, 535). Were the mutually constitutive technological, discursive, and embodied dimensions of the hangman’s metaphysic still seamlessly interwoven, he might have said, the noose would never fold itself into the shape of a question mark. That it has now done so is indicative of trouble in the relationship between violence and the law of the late liberal state. Violence, as I noted in chapter 3, is the indispensable premise of liberal law in at least two familiar ways. First, law is that which overcomes the threat of warfare that is always present in liberalism’s fictive state of nature; and, second, according to the contract that removes persons from that condition, political order becomes possible only when each individual transfers to the state his or her natural right to deploy violence. What distinguishes that state’s exercise of violence from its anarchic source is precisely its lawful character, its exercise in accordance with established rules. That distinction, however, is never simply given; it must be constantly manufactured as a condition of the state’s claim to rightful authority. The rationalization of state violence is one means of securing that distinction, and in this chapter I have explored the struggle to spare the noose from the dustbin of history by perfecting the bureaucratic and technical conditions of its deployment. Today, however, and especially in light of the emergence of more refined methods of killing, the noose cannot help but appear an anachronism and, more specifically, an anachronism that is problematic because the harm it does to human bodies too vividly recalls the sorts of violence from which the law must be extricated. The gallows, in sum, must be forsaken in order to save the law. Yet Judge Coughenour, demonstrating that the rationalization of state violence is never inexorable, never exempt from local accident and aberration, does not draw this conclusion. To evade it, in the time it takes to generate a mere seven pages of transcript, he must fashion a self-contained juridical universe, one from which all complicating evidence is either excluded or denied legal import. This exercise cannot help but involve some measure of cognitive strain since his endorsement of the state’s claims at the expense of Campbell is necessarily tainted by considerable arbitrariness. That strain is most absurdly evident when Coughenour notes that Washington’s hanging protocol is derived from the 1959 army manual and then, in order to show how


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this derivation substantiates the state’s present case, announces the following as one of his twenty-nine findings of fact: “Petitioner presented no evidence that a judicial hanging carried out under the United States Army execution regulation ever resulted in a decapitation, torture, lingering death or the unnecessary and wanton infliction of pain” (Campbell v. Blodgett, 567). This claim is demonstrably true, but it is so not because of the manifest perfection of those regulations, but because no hanging was in fact ever conducted in accordance with their dictates. Less obvious but hardly absent is the strain generated by the judge’s conclusion that the evidence presented over the course of this hearing establishes that the Washington protocol “has eliminated virtually all possibility of decapitation,” of a “tortured or lingering death,” and of “unnecessary and wanton infliction of pain” (Campbell v. Blodgett, 568). These conclusions are reinforced by the finding that “any discernible bodily movement following the drop in judicial hanging will in all likelihood be a decerebrate movement,” which in turn becomes the premise of the conclusion that “the execution of Westley Allan Dodd resulted in death without suffering” (570, 572), which in turn becomes the premise of the conclusion that the execution of Campbell will prove equally consonant with the hangman’s dream. Crucial to the success of this legal syllogism, as we have seen, is the systematic exclusion of all evidence that might call it into question. And yet, or so it seems, the slowly suffocating bodies and decapitated corpses Coughenour has deemed inadmissible, evidence of the noose’s uncertain ability to validate the distinction between legal and extralegal violence, continue to haunt him, and so these demons must be exorcised once again: “The Court made numerous rulings excluding evidence of alleged ‘bungled’ hangings for various evidentiary reasons, including hearsay, lack of foundation, and undue prejudice under Rule of Evidence 403. However, even if this evidence had been admitted, these findings of fact would not be changed” (571). In short, no concrete bodies bearing specific names and determinate biographies will be permitted to disturb the state’s metaphysical faith in the abstract certainty of its protocol, even though that protocol’s centerpiece, its table correlating weight and rope length, is itself predicated on an untested military manual whose scientific warrant is suspect at best, and even though that certainty is grounded in nothing more than the contested and arguably fortuitous execution of Westley Allan Dodd.

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Once this closed universe of “facts” has been fashioned, its translation into constitutional form is presented as a virtual afterthought. In its entirety, Judge Coughenour’s conclusions of law consist of (1) the claim that it is petitioner’s burden to prove that judicial hanging is cruel and unusual punishment; (2) the insistence that the pain involved in “the extinguishment of life” does not itself constitute such punishment; and (3) the declaration that judicial hanging, presumably because the facts demonstrate that it causes no pain other than that necessary to extinguish life, does not violate the Eighth Amendment (Campbell v. Blodgett, 572). Lest this act of judicial alchemy prove suspect, it is imperative to demonstrate that these conclusions are dictated by the law itself. Its majesty, and hence the subordination of personal predilection to its impersonal authority, must be emphatically affirmed: “My role,” states Judge Coughenour in his final remark, “is to carry out the law, whether I agree with it or not, and I will say for the record today, I do not believe in capital punishment” (573). No champion of the law, I submit, could ask for a more cunning adherent of the hangman’s metaphysic. Whereas John Coughenour speaks, Charles Campbell does not. “Mr. Campbell,” announces Superintendent Tana Wood at 12:07 A.M. on May 27, 1994, “has declined to give any last words” (Broom 1994b). Exactly what we are to make of this pronouncement is unclear, especially when we recall that Campbell had spent twenty-three hours of every day over the course of the past twelve years in a seven- by eightfoot concrete cell, that he was forcibly subdued prior to his removal to the death chamber’s holding cell, that he was carried to the gallows lashed to a restraining board, and that unexplained traces of the antidepressant drug Elavil were found in his bloodstream after his death. Yet this final deed must be figured as the unconstrained action of a selfgoverning agent if the hangman’s metaphysic is to remain secure. As a consequence of this “choice,” the superintendent informs those in attendance, the curtains veiling the upper portion of the split level gallows will not be parted, as they had been when Dodd muttered several incoherent phrases about the power of Jesus into a microphone mounted into the wall; and so the witnesses below, much like those chained to the wall in Plato’s cave, are treated to nothing other than flickering silhouettes and shadows. “It appeared,” some later reported, that “there were difficulties at a few points just before Campbell dropped to his death, although they disagreed whether he was strug-


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gling against the officers” (Broom 1994a). Was Campbell grabbed by the hair in order to ready him for the hood? Did he jerk his head as guards sought to fix the noose around his neck? Why were several tugs apparently required in order to tighten its knot? None of these questions can be answered definitively, thereby leaving a penitentiary spokesperson free to construct Campbell as a being who has chosen to be what the state has mandated that he become: “He was conscious but he was being passive, like, ‘If you want to move me, move me’” (Los Angeles Times, May 28, 1994, 19). Thus does the state announce its discovery of just what it requires: a subject who voluntarily elects to assume the role of a docile body awaiting incorporation within this archaic killing machine.

Chapter 5

Silencing the Voice of Pain

“Legal interpretation takes place in a field of pain and death” (Cover 1986, 1601). The law of the liberal state, Robert Cover observed, seeks to distance itself from the violence implicated in its very existence. To do so, to cite the example I explored in chapter 2, the law detaches the pronouncement of a death sentence from its imposition. Although less often noted, much the same end is achieved via the law’s endorsement of a culturally specific construction of pain. That account, occluding its own historicity, renders pain radically solipsistic and so effectively unintelligible. To the extent that this antipolitical construction has also been embraced by the foes of specific methods of execution and capital punishment more generally, within the academy as well as within the courtroom, it compromises their ability to render pain visible and so contestable. To trouble this construction, in this chapter, I suggest that pain might profitably be figured not as a brute unverifiable reality located exclusively within the hidden interior of the hurt body, but as a cultural artifact, indeed, as a sort of language. Doing so complements my earlier representation of the death sentence as a performative deed insofar as a discursive construction of pain also renders problematic the law’s efforts to contain the harm it does by separating word from deed, sentence from execution. As such, it advances the goal sought by Cover, that is, to indicate how pain circulates throughout the entire legal order. Modernist Pain In its modernist construction, pain is typically figured as a complex signal broadcast through the nervous system and carried from the site of bodily harm to the brain. For political purposes, it is important to recall that this is a historically specific conception. To see the point, one need 135

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only consider Blaise Pascal’s “Prayer to Ask God for the Good Use of Sickness”: Make me fully understand that the ills of the body are nothing else than the punishment and the encompassing symbol for the ills of the soul. O, Lord, let them be the remedy, by making me aware, through the pain that I feel, of the pain that I did not feel in my soul, deeply sick though it was and covered with sores. Because, Lord, the greatest sickness is insensibility. . . . Let me feel this pain sharply, so that I can make whatever is left of my life a continual penance to wash away the offenses I have committed. (Quoted in Morris 1991, 44) On Pascal’s Jansenist account, the body is conceived as a carnal envelope imprisoning the soul, and the body’s pain is a sign of the just punishment endured by that irremediably diseased soul in virtue of the primal sin of Adam and Eve. As such, pain is to be greeted with resignation, but also with gratitude insofar as, and no doubt paradoxically to profane ears, it calls the sufferer to an awareness of the body’s ultimate insignificance. Alternatively, as intimated by the etymological link joining the terms excruciating and Crucifixion, Catholic pain is sometimes spiritualized via its sublimation within the narrative of the Passion and death of Christ. On either formulation, the unintelligibility of the body’s woes absent its theological construction is suggested by the lack of any separate entry for the term pain (peine) in the Catholic Dictionnaire de théologie, published between 1935 and 1972. In that compendium, discussion of what secular humanists would call pain is found partly under the entry mal (evil, adversity) and partly under Providence, thus suggesting the Catholic vacillation between, on the one hand, the formulation of pain as a foretaste of God’s final retribution and, on the other hand, its formulation as a test of moral fortitude and hence as a token of eventual redemption (Rey 1995, 184). On this theological account, explains Ivan Illich (1976), what was quite literally unthinkable was the belief that pain should or could be wholly eradicated through the intervention of any human agent, whether priest, politician, or physician. If pain is a mark of the corruption of nature, of which depraved humanity is undeniably a part, then it can no more be eliminated than can the human condition itself. Not sur-


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prisingly, given this construction, throughout the eighteenth century and well into the nineteenth, European and American clergy played a major role in ministering to those in pain. Only after 1846, when a Boston dentist by the name of William Morton demonstrated that the vapor of diethyl ether could forestall the agonies of surgery, did the claims of physicians begin to supplant those of the clergy (see Pernick 1985). While the details of this conflict need not concern me, its results do. That we now think of pain as an unqualified evil, one that is to be entirely overcome, if at all possible, testifies to modern medicine’s successful expropriation and colonization of this domain of experience.1 On the face of it, the modern medicalized construction of pain is a straightforward matter. This is a rationalized construction in the Weberian sense, that is, in the sense that its formulation in the language of modern science entails the withering away of the traditional moral and religious vocabularies that once folded pain within the more comprehensive category of suffering. To the biomedical researcher, pain is understood not as a manifestation of some disorder or malady stitched into the very seams of the cosmos, but as an aversive effect occasioned by changes in various etiological mechanisms, including sensory receptors, afferent neuronal relays, and spinal-cord, midbrain, or higher cortical modulating systems. Read as an indicator of nociception, as a sign or symptom of injury or disease, modernist pain is to be professionally managed either by removing its cause or, failing that, by the administration of analgesia. One might argue, as does Illich, that the resulting technological conception of pain evacuates it of all possible meaning: When cosmopolitan medical civilization colonizes any traditional culture, it transforms the experience of pain. The same nervous stimulation that I shall call “pain sensation” will result in a distinct experience, depending not only on personality but also on culture. This experience, as distinct from the painful sensation, implies a uniquely human performance called suffering. Medical civilization, however, tends to turn pain into a technical matter and thereby deprives suffering of its inherent personal meaning. Cultures are systems of meanings, cosmopolitan civilization a system of techniques. Culture makes pain tolerable by integrating it into a meaningful setting; cosmopolitan civilization detaches pain from any

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From Noose to Needle subjective or intersubjective context in order to annihilate it. Culture makes pain tolerable by interpreting its necessity; only pain perceived as curable is intolerable. (1976, 133–34)

Leaving aside the problematic distinction he draws here between the universal “painful sensation” and the culturally specific experience of it (to which I shall return in the final section of this chapter), and leaving aside his failure to recognize that modernist discourse does not so much evacuate pain of all sense as narrow its range of meanings to those that conform to the imperatives of biomedical intelligibility, Illich is quite right to suggest that when this vocabulary no longer appears to be one among many possible candidates for making sense of pain, and when those who speak this language come to believe that, in doing so, they are disclosing incontestable facts about the body in pain, what was once an inherently contestable sense-making discourse is effectively naturalized and so depoliticized. “Living in a society that values anesthesia,” he concludes, “both doctors and their potential clients are retrained to smother pain’s intrinsic question mark” (Illich 1976, 143). But is the modernist medical construction of pain as internally coherent as Illich’s indictment intimates? Is it possible that this construction, no matter how successful at vanquishing its opponents, is nonetheless troubled by difficulties that can be publicly acknowledged only at the cost of calling into question the medical profession’s selfrepresentation? To indicate why this may be so, let me begin with a standard biomedical definition of pain. The International Association for the Study of Pain (IASP) fixes the subject of its inquiry as follows: “Pain is an unpleasant sensory and emotional experience associated with actual or potential tissue damage or described in terms of such damage” (IASP 1979, 249). This definition, which is part of a more comprehensive attempt to formulate a standardized vocabulary for professional students of pain, represents a strategic attempt to negotiate some of its more vexing conundrums. Specifically, and as the phrase “actual or potential” intimates, this definition acknowledges that there is no necessary correlation between the extent of what the IASP calls “tissue damage” and the intensity or even the experience of pain. It is quite possible, for example, for someone to be in fierce pain without displaying any tissue damage, just as it is possible for someone to display severe tissue damage and yet feel no pain.


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In their oft-cited Handbook of Pain Assessment (1992), Dennis Turk and Ronald Melzack commend the IASP on the grounds that its definition, precisely because it acknowledges the causal discontinuity between injury and pain, “underscores the inherent subjectivity of pain” (xi). That subjectivity, they continue, is a function of pain’s inaccessibility. While a physician may locate the cause of my pain (e.g., a wound) or its symptom (e.g., swelling), she cannot point to my pain per se (just as I cannot point to the color of a piece of paper); and, because pain can neither be identified with nor located neatly within any determinate embodied site, it would seem to follow that it must be something that resides in the ethereal and invisible domain of consciousness. Precisely because it is so located, anyone’s claim to be in pain is, strictly speaking, incorrigible in the sense that it cannot meaningfully be denied by another. (To see the point, consider the following exchange: You say, “I am in pain,” to which I respond: “No, you are mistaken.”) But if indeed pain is radically solipsistic, as this exchange suggests, then it cannot help but pose awkward questions for those, like the members of the IASP, who are committed to its scientific analysis. For example, the absence of any isomorphic or linear causal relationship between bodily damage and pain mocks the hope, once entertained by medical researchers, of precisely mapping the pathways taken by neural impulses from the site of harm to the brain. Still more generally, it undermines medicine’s confidence in its ability to identify a physiological cause for every report of pain and so threatens to render some instances simply inexplicable. Tacitly acknowledging that the subjectivism of the definition they have endorsed cuts against their ability to articulate a scientific account of its operation, Turk and Melzack are quick to insist that, if inquirers are to “understand and adequately treat pain, we need to be able to measure it” (1992, xi). But this effort to recapture pain as a viable subject of positivist inquiry is quixotic at best, if only because different individuals who demonstrate the same sort of physical injury routinely offer radically incongruent statements concerning the intensity of their pain: “A number of cultural, economic, social, demographic, and environmental factors, along with the individual’s personal history, situational factors, interpretation of the symptoms and resources, current psychological state, as well as physical pathology, all contribute to the response to the question ‘How much does it hurt?’” (Turk and Melzack 1992, xi). Yet if that is so, if there is

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“no simple thermometer that can objectively record how much pain an individual experiences” (5), then that person’s assessment of its intensity will tell us nothing about the “reality” of the harm suffered by the body and, as such, will take us nowhere in our efforts to get beyond pain’s solipsism. Some biomedical researchers have responded to this dilemma, Turk and Melzack concede, by arguing on behalf of a strict behaviorist conception of pain: “In an effort to avoid the problems inherent in selfreports of pain severity, some investigators and many clinicians suggest that the report of pain should be ignored because it is a symptom rather than an objective sign that is believed to be more reliable and valid” (1992, 6–7). Persons in pain, adherents of this conception note, typically display a range of observable behaviors (e.g., moaning, limping, wincing, etc.). So as to avoid the puzzles encountered by formulations that read such conduct as an untrustworthy sign of pain that is itself inaccessible and unverifiable, the behaviorist account denies the privilege of reality to that which cannot be visibly confirmed and so concludes that such conduct is one’s pain. From this conclusion, it follows that operant conditioning that successfully eliminates these learned behaviors will, by definition, rid the sufferer of his or her pain. However, and leaving aside the problem posed by the cross-cultural variability of conventional pain behaviors, it is all too easy to imagine a situation in which all of the observable indicators are present without a person actually being in pain (as in a theatrical performance). And, if that is so, then the presence of pain behavior cannot be equated with the experience of pain per se, although it is often identified by such behaviors (see Turk and Flor 1987). In sum, whereas I can never be wrong when I claim that I am in pain, I can readily be in error when I make the same claim about another. Caught between their endorsement of a subjectivist definition of pain and their objectivist requirement that it be a measurable public reality, Turk and Melzack seek to effect an epistemological compromise. In the last analysis, they concede, “anything that can be determined about the intensity of an individual’s pain is based on what the patient verbally or nonverbally communicates about his or her subjective experience” (1992, 5). However, they go on, one can offset the problematic implications of this reliance on the idiosyncratic by asking sufferers to quantify their pain and, more specifically, to rank it on a scale


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of zero to ten. Yet this compromise is ultimately unsatisfactory, first, because the privatism of the scaling systems generated by diverse individuals is inconsistent with the very concept of measurement, and, second, because its quantitative reductionism cannot capture the qualitative dimensions that experientially distinguish this pain from that. True, one might respond to this latter deficiency by developing, as does the McGill-Melzack Pain Questionnaire (Melzack 1975), a series of terms that seek to tap into pain’s qualitative dimensions (e.g., burning, pinching, gnawing, etc.). But, so long as one cannot determine the fidelity of these terms to the reality they are said to represent, except via the testimony of the sufferer, this strategy cannot satisfy the demands of a positivist epistemology that must presuppose the cognitive availability of a world of intersubjectively verifiable objects. If pain is ultimately whatever the individual sufferer says it is, and if it routinely frustrates efforts to delineate its operation in the terms of linear causality, then the possibility of rendering it a fit object of biomedical inquiry is compromised, perhaps irreparably. “Pain,” concludes Arthur Kleinman, “eludes the [medical] discipline’s organized explanatory systems as much as it escapes the diagnostic net of biomedical categories” (1992, 170). Rebuttable Pain What happens when the dilemmas inherent within the modernist construction of pain are imported within the domain of law, and, more particularly, what happens when such pain becomes a contested issue within the context of a lawful execution? Before moving directly to these questions, it is important to note that just as the construction of pain is historically and culturally specific, so too is the construction of its relationship to capital punishment. To see the point, one need only recall the familiar account, offered by Foucault in Discipline and Punish (1979), of the execution of the would-be regicide, Damiens, in 1757. That highly ritualized spectacle represented an awesome reaffirmation of compromised sovereign power. The success of that reaffirmation, whose purpose was to purge the body politic of its infected organ and thereby heal its remainder, demanded maximal intensification of the condemned’s pain. Damiens’s agony is rendered meaningful via its incorporation within a cosmological narrative concerning the status of

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the monarch as the inviolable head of an interdependent body politic, which in turn references the king’s standing as God’s agent on earth. Propelled by that narrative, the pain of Damiens ramifies beyond the finite limits of his body, moving in one direction toward the temporal political order he sought to dismember, and in the other toward the eternal agonies his soul is certain to suffer in hell. The claims of the former are incarnated in the persons of the magistrate and the executioner, while the claims of the latter are embodied in the person of the priest. Neither articulates the construction of pain figured in the person of the physician. The medicalization of pain is one of the distinguishing features of modern executions. In his comparative account of two state-sponsored killings in New York, the first in 1825 and the second in 1892, Michael Madow (1995) notes how questions that figured centrally in the latter were strikingly absent in the former. When James Reynolds was publicly hanged in New York City in 1825, the report offered by the Commercial Advertiser ended with this statement: “The cap was then drawn over his eyes and at a quarter before one o’clock while he was earnestly crying to God for pardon the drop fell and he was launched into eternity.” As Madow notes, “[W]hat is interesting here is what was left unreported. Did Reynolds’s neck vertebrae snap, killing him quickly? Or did he die a slow death by strangulation? Did he struggle? Did he suffer? We are not told. . . . It was Reynold’s soul, not his body, that claimed the narrative’s center” (486). By way of contrast, when Charles McElvaine was privately electrocuted at Sing Sing some sixty-six years later, physicians, not clergy, dominated the scene, and the questions posed by journalists assembled outside the penitentiary all presupposed this event’s medicalized construction: “Exactly when did McElvaine die? When did he lose consciousness? Did he feel any pain? Was there any burning of the flesh?” (486). On this account, the question of McElvaine’s soul is eclipsed by that of his body; and, although no doubt the break from earlier sensibilities is not entire, his body is itself understood as something akin to the unambiguously demarcated biomechanical entity that appears selfevidently real to us today. This body’s sense is derived not from the comprehensive domains of political or cosmological significance from which it has now been effectively amputated, but from its relationship to the individual person who bears this proper name. Over the course


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of the nineteenth century, argues Alan Hyde (1997), “a distinctively modern body takes shape in legal and popular culture, a body that represents an individuated, human spirit that is the person inside it, a person that controls that body but is not identical to it” (9). On this neoCartesian understanding, it is the person, not the body, that commits crime, for the body cannot be ascribed any autonomous legal agency. Hence, when the state incarcerates that body, its aim is to deprive the person housed within, the fictive subject of law’s imperatives, of its rights. Because that legal subject is not itself regarded as a material entity, as is the body, when the law punishes, its aim cannot be the infliction of pain per se. Accordingly, when any given punishment does in fact cause pain, modern liberal law confronts a dilemma it is illequipped to resolve. That dilemma is all the more pressing when the question of pain arises in the context of a death sentence. There, the aim of law is still to employ the palpable body as a means to the deprivation of abstract rights, and in this sense the body is incidental to the law’s ultimate objective. What complicates this project, of course, is capital punishment’s status as the last remaining penalty that accomplishes its purpose via the deliberate and direct infliction of harm upon the body. That imperative cannot help but coexist uneasily with the self-understanding of a liberal state, which, throughout the nineteenth and twentieth centuries, was ever more given to humanitarian pieties, and so ever more pressed by its own discourse to embrace the sentimental ideal of a killing that involves no pain. The state’s ability to occlude the suffering caused by this most dramatic manifestation of its monopolization of the means of violence is enhanced by the medicalized representation of pain as an effect caused by physiological injury and localized within the body’s invisible confines. Just as the law teaches us to accept as real certain forms of violence, but to dismiss others (consider, e.g., the unproblematic status of domestic violence until recently), so too does a medicalized conception of pain encourage us to acknowledge certain forms of suffering, but to discount others. Most obviously, this conception will not call our attention to suffering that has no identifiable physiological cause (consider, e.g., the terror of knowing the precise moment when one is scheduled to die). Especially when joined to claims about its inherent subjectivity, which invites us to doubt the reality of others’ suffering, the confinement of pain to the unseen interior of the body severs the relational

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connections, truncates the lines of implication, that were far more apparent when “individuals” were understood as organs of a larger body politic and when the pain suffered by such organs was saturated with cosmological import. Accompanied by the removal of executions to the interior of penitentiaries, the transformation of executioners into impersonal bureaucratic officials, and the adoption of execution methods that leave the condemned body unmarked, the contemporary construction of pain contributes to the state’s effort to reduce the likelihood that executions will generate disconcerting questions about the justice or legitimacy of the political order that mandates this punishment. But matters are rarely if ever quite this simple. If, as I suggested in the previous section, the biomedical construction of pain is internally conflicted, do traces of that trouble sometimes surface within the law? More pointedly, what happens when an execution is bungled in a way that compels the law to confront the question of pain? To answer these questions, and to do so in a way that indicates how uncritical adoption of the modernist account of pain compromises the efforts of those who seek to render it conspicuous, in the remainder of this section, I explore the execution of Allen Lee Davis as well as the Florida Supreme Court case in which the corpse of Davis figured centrally. Allen Lee Davis, nicknamed “Tiny,” was convicted on three counts of first-degree murder in 1983 and sentenced to die; his victims included the pregnant Nancy Weiler, married to a Westinghouse executive, and their two daughters, Kristine, age nine, and Katherine, age five. Some fifteen years later, concerned about the ability of its seventyfour-year-old wooden electric chair to withstand Davis’s 350 pounds, the state of Florida elected to build a new frame, although most of the original wiring system was retained. The following June, Governor Jeb Bush signed his first two death warrants, one for Davis and another for Thomas Provenzano, who was convicted in the shooting death of an Orange County bailiff during a hearing on a disorderly conduct charge. On July 8, 1999, just after 7:00 A.M., Davis was strapped into Florida’s electric chair and, at 7:09, a private citizen who was paid $150 and whose identity was hidden by a hood threw a switch that released an initial 1,500-volt charge for ten seconds, followed by a second jolt of 600 volts for 4.5 seconds, and, finally, another 1,500-volt blast for ten seconds. Davis, also hooded, was pronounced dead at 7:15. Although no recent execution employing “Old Sparky” has gone


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without comment, Florida’s killing of Davis provoked a furor. Why it did so is indicated in the following account offered by the St. Petersburg Times: Two muffled screams were heard from Davis just before the executioner threw the switch. Davis jolted back into the chair and clenched his fist, a sight common to Florida executions. . . . Blood appeared to pour from the mouth and ooze from the chest of Allen Lee “Tiny” Davis as he was hit with 2,300 [sic] volts. . . . By the time Davis was pronounced dead at 7:15 A.M., the blood from his mouth had poured out onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even seeping through the buckle holds on the leather chest strap holding him to the chair. . . . The heavy bleeding was believed to be a first for 44 modern Florida executions. (July 8, 1999, 1) At a press conference immediately following Davis’s execution, a spokesperson for Governor Bush, Cory Tilley, announced to the assembled reporters that “nothing went wrong. The chair functioned as it was designed to function and we’re comfortable that that worked” (St. Petersburg Times, July 8, 1999, 1). However, speaking for the Department of Corrections, Eugene Morris confessed that “the blood is not normal . . . I’ve witnessed 15 and I’ve never seen blood” (St. Petersburg Times, July 9, 1999, 1). Uncertain what to make of these conflicting accounts, just eleven hours after Davis was pronounced dead, the Florida Supreme Court stayed the execution of Provenzano, who had been scheduled to die the following morning. Because idiosyncratic human bodies are rarely as predictable as the law wishes them to be, executions always harbor the potential to unsettle the conventional understandings that otherwise stabilize the law’s routinized authority. What rendered this particular event extraordinary, of course, was the blood that violated accustomed sensibilities concerning what belongs inside the body and what belongs on its outside. That crimson stream eluded the law’s effort to contain the meaning of this execution, and it did so by transforming the corpse of Allen Davis into an unsettling puzzle. Did he suffer? If so, how much, for how long, and why? Pain, as I indicated in the previous section, is not self-announcing; it requires some mode of articulation in order to

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make its appearance in the public world. But the import of that which is legible, in this instance, the blood of Allen Davis, is never self-evident. As such, it is subject to differential interpretation and therefore, at least potentially, a matter of political contest. The terminus of this particular contest was announced by the Florida Supreme Court when, on September 24, 1999, it ruled that employment of the electric chair is not unconstitutional. Of limited interest to me is the specifically legal reasoning that drew the court, by a vote of four to three, to this conclusion. Suffice it to say that, citing Gregg v. Georgia (428 U.S. 153 [1976]) and Louisiana ex rel. Francis v. Resweber (329 U.S. 459 [1947]), the court argued that “in order for a punishment to constitute cruel or unusual punishment, it must involve ‘torture or a lingering death’ or the infliction of ‘unnecessary and wanton pain’” (Provenzano v. Moore, No. 95,973, Supreme Court of Florida [1999], 4). Because the record, on the court’s account, demonstrated that Davis died immediately and painlessly, execution by electrocution does not offend either of these tests. Of greater interest to me are the eight findings of fact that were generated by the circuit court as a result of its evidentiary hearing and then cited by the supreme court as the basis for its decision. Collectively, these findings enunciate the law’s effort to navigate the troubling uncertainty of Davis’s blood-stained shirt and, more specifically, its status as a possible trace of the pain that, in the last analysis, it will deny. Slightly abridged, those findings are as follows: 1. During the execution of Allen Lee Davis, the electric chair functioned as it was intended to function. 2. The cycles of voltage and amperage applied in the execution of Allen Lee Davis did not deviate from the execution protocol which was previously approved by the Florida Supreme Court. 3. The death of Allen Lee Davis did not result from asphyxiation caused by the mouth strap. 4. Allen Lee Davis did not suffer any conscious pain while being electrocuted in Florida’s electric chair. Rather, he suffered instantaneous and painless death once the current was applied to him. 5. The nose bleed incurred by Allen Lee Davis began before the electrical current was applied to him, and was not caused whatsoever by the application of electrical current to Davis.


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6. The post-execution photographs of Allen Lee Davis indicate that the straps used to restrain Davis’ body, specifically, the mouth strap and chin strap, may have caused Davis to suffer some discomfort. However, the straps did not cause him to suffer unnecessary and wanton pain, and the mouth strap was not a part of the electrical operation of the electric chair. 7. The use of a mouth strap to secure an inmate’s head to the electric chair may be desirable, however, a smaller and/or redesigned mouth strap could accomplish the same purpose without raising the same issue involved here. 8. Execution inherently involves fear, and it may involve some degree of pain. That pain may include pain associated with affixing straps around the head and body to secure the head and body [to] the electric chair. However, any pain associated therewith is necessary to ensure that the integrity of the execution process is maintained. (Provenzano v. Moore, 2–3) To ears untutored in the law, much like the naive eyes that first saw the videotape of Rodney King’s beating by members of the Los Angeles Police Department, the initial accounts of Davis’s execution most certainly testified to the reality of a body in torment. But, the court explains, after applying a method of analysis that in certain respects is very much like that employed by the defense attorneys who disaggregated the King footage into so many freeze-frame fragments, what the ears believe they hear and the eyes think they see are often poor guides to what the law knows about pain. The initial strategy adopted by the circuit court to dispel the political awkwardness occasioned by Davis’s blood consists of its effort to specify that fluid’s exact point of origin and, in so doing, to check its capacity to seep into areas where the law might find its meaning more difficult to contain. Contrary to reports generated by eyewitnesses to Davis’s execution, some of whom maintained that blood oozed from his mouth and/or his chest, autopsy reports introduced during the evidentiary hearing indicated that its sole source was his nose. Moreover, witnesses for the state testified, Davis was predisposed to nosebleeds because, for some time, he had been taking blood-thinning drugs, including aspirin and Motrin, as a remedy for the pain caused by severe osteoarthritis. The court thereby offers a scientifically intelligible

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account for Davis’s nosebleed, one that tacitly references the medical profession’s status as minister to the body’s woes and, by implication, the state’s solicitude prior to his execution. Deflecting attention from the extraordinary circumstances of its production, this mundane explanation domesticates what might otherwise be taken as a disturbing signifier of barbarous violence. Yet those circumstances cannot be altogether denied, and so, as a complement to its spatial localization, the circuit court seeks to temporally circumscribe Davis’s blood as well. By emphatically insisting that the nosebleed “began before the electrical current was applied to him,” the court implies that it should not be understood as an immanent part of the execution proper. The relevant statute mandates that “a death sentence shall be executed by electrocution” (Florida State Code, Title XLVII, Chapter 922.10). Therefore, strictly speaking, a consideration of Davis’s nosebleed is irrelevant to an assessment of this method’s constitutionality. By rendering legally inconsequential everything that occurs prior to the moment when the switch is finally thrown, the law effectively distances itself from the injury that Davis’s blood so insistently proclaims. Having done so, the state can then concede that “the mouth strap and chin strap may have caused Davis to suffer some discomfort” (although the term may suggests the epistemological uncertainty of even that conclusion, and the term discomfort represents Davis’s suffering as a minor irritation at best), without worrying that this acknowledgment will compromise its affirmation of this way of killing. However, this strategy of disaggregating the act of killing into those components that are constitutionally salient and those that are not is not itself free of risk. If the blood in question “was not caused whatsoever by the application of electrical current to Davis” (does the court protest too much?), then what was its cause? As the court acknowledges, the broad leather strap circling the lower portion of Davis’s head, covering his mouth, pushing up hard against his nostrils, buckled tightly behind his head, is the obvious culprit. But does that suggest, as those in dissent do, that the screams heard by several witnesses just prior to the first jolt of electricity were so many inarticulate protests against the onset of asphyxiation? And if that is so, should we conclude that deprivation of oxygen was a contributing cause of Davis’s death? And if that is so, did the conduct of this execution vio-


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late the terms of the statute that the state so carefully cited in its own defense just a moment ago? Should we determine that, because not one but two causes of death were involved, the execution of Allen Lee Davis was at least in part an act of lawless violence? To nip this series of questions in the bud, the circuit court asserts that “the mouth strap was not a part of the electrical operation of the electric chair.” Doing so, and consistent with its initial strategy, it defines this apparatus in a way such that the specific part that may have occasioned some “discomfort” is adventitious to the act of killing and, as such, irrelevant to the execution of a lawful sentence by electrocution. (However, if the strap is indeed irrelevant in this sense, it is not clear why this court of law deems it appropriate to recommend specific technical modifications in its design.) Perhaps sensing that this semantic tactic is not altogether persuasive, and ignoring considerable contrary evidence introduced at the evidentiary hearing, the court simply declares as a categorical fact that “the death of Allen Lee Davis did not result from asphyxiation caused by the mouth strap.” What is almost entirely missing from the circuit court’s findings of fact is any representation of Davis as what Alan Hyde calls “a sympathetic body” (1997, 199), as the sort of body that is dangerous to the law precisely because it invites intersubjective identification. Perhaps that sort of body makes an oblique appearance when, in the eighth finding, we are told that “execution inherently involves fear.” But, given that such fear is not ascribed to Davis in particular, and given that all of the other findings reduce him either to the status of an abstract legal person (the figure that appears whenever the name Allen Lee Davis is invoked) or to a mindless corporeal container that bears no essential connection to the autonomous subject housed within (the figure that appears whenever the term body is invoked), his capacity to distract from the genuinely significant constitutional question is radically constrained: “While there has been much said about the Davis execution because of the blood which dripped from the inmate’s nostril during this process,” notes an impatient Justice Quince in his concurring opinion, “the real question here is whether or not the use of electrocution violates the ‘evolving standards of decency’ espoused by the U.S. Supreme Court” (Provenzano v. Moore, 17). The task for the dissenters on the Florida Supreme Court is to fashion such a sympathetic body or, rather, to stitch together Davis’s body

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and mind so as to fashion an embodied person, and to do so in a way that makes his pain palpably real. Here, too, my interest is not in the specifically legal arguments that generate the conclusion that electrocution, because it causes undue pain and unnecessary mutilation, violates the cruel and unusual punishment clauses of the Florida and U.S. constitutions. Rather, my aim is to explore the strategies that are deployed in an effort to render plausible the contention, advanced by Justice Shaw in the most extensive of the three dissenting opinions, that Allen Lee Davis, “for all appearances, was brutally tortured to death by the citizens of Florida” (Provenzano v. Moore, 65). The foremost of these strategies consists of an effort to present the visual and auditory clues afforded by Davis before and after the administration of electrical current as incontestable indicia of pain. That effort proves ultimately unsuccessful, I suggest, because the arguments of electrocution’s opponents are bedeviled by a modernist conception of pain, one that vacillates indeterminately between equally unpersuasive subjectivist and objectivist accounts of its nature. Shaw’s initial effort to make Davis’s pain real involves ascribing to him the voice of an autonomous subject who, in speaking, seeks to make public a truth that is otherwise hidden within his body’s interior: “After Davis’ airflow had been blocked by the mouth-strap, the face-mask, and his own blood, Davis made several sounds under the face-mask which were described variously as muffled screams, moans, or yells, as if he were attempting to get the guards’ attention” (Provenzano v. Moore, 49). Bolstered by the testimony of a forensic pathologist who, on the basis of an independent autopsy, concluded that death was at least partly caused by asphyxiation, Shaw attempts to ascribe to Davis a deliberate intent, specifically, to request relief from the agony of suffocation. But, as his “as if” reveals, there is no way to overcome the speculative nature of this conjecture and so to adduce this evidence as indubitable proof of Davis’s pain. Shaw seeks to overcome this epistemological lacuna by citing in rapid succession testimony from four eyewitnesses to the execution. None, however, is able to provide Shaw the certainty he requires: one, for example, “heard what sounded like two screams from Davis,” while another “heard two muffled sounds from Davis, which sounded like Davis was trying to say something” (Provenzano v. Moore, 49–50). Was Davis, as this second witness suggests, attempting to give his pain intelligi-


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ble linguistic form, say, in the form of a call for help? Or, as the first witness appears to imply, was Davis reduced to the status of a brute body that could do no more than cry out in pain? Or was John McNeill, utility supervisor at the Florida State Prison, closer to the mark when he testified that Davis “didn’t make any sounds that wasn’t normal. . . . He grunted then, all I heard, a grunt”? (Provenzano v. Moore, Initial Brief of Petitioners, Case Nos. 95,959, 95,973 [1999], 16 [hereinafter cited as Initial Brief ]). Given the modernist construction of pain, our perplexity in the face of these questions cannot help but remain unresolved. If Davis was in pain, just how severe was it? Given pain’s resistance to objective measurement, unlike determination of the precise number of volts that coursed through his body, we cannot say. Indeed, can we be sure that Davis, prior to the administration of electricity, endured any pain? Even if we concede that the indeterminate noises issuing from Davis’s body signified his suffering, given the absence of any necessary correlation between bodily harm and the experience of pain, is it not possible that the hurt Shaw thinks Davis sought to express had no pathophysiological cause, but instead was purely psychological in origin? And if that is so, then might we be tempted to say either that its cause was psychosomatic and so, from a biomechanical perspective, not quite real or, adding insult to alleged injury, that Davis was in some sense implicated in or even responsible for the production of his own pain? In sum, the attempt to treat Davis as if he were a conscious subject seeking to give voice to his suffering founders on the shoals of a solipsistic construction of pain that leaves us forever in doubt as to its reality. Not surprisingly, the supreme court’s majority exploits such skepticism in order to bolster its contention that Davis experienced no pain and, by implication, that the law is not an accomplice to torture. Much the same sort of skepticism vitiates the second strategy deployed by those in dissent. Here, rather than seeking to ascribe a voice to Davis, his mute body is read for visual signs of its suffering. Crucial to this effort are the postexecution photographs that Justice Shaw appends to his opinion and then posts on the website of the state’s highest court. Such evidence, Shaw wants to believe, precisely because it is not a matter of discursive construction, precisely because it is not compromised by the ambiguities of language, will surely speak for itself:

Fig. 4. Postelectrocution photograph of Allen Lee Davis (1999). (Provenzano v. Moore, Supreme Court of Florida.)


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The color photos taken by DOC show a ghastly post-execution scene: Davis is wearing a white shirt and dark pants and is restrained in the wooden chair by thick leather straps placed across his arms, legs, torso, and mouth; the electrical head-piece is attached to the top of his head with a leather strap that turns under his chin; a sponge placed under the head-piece obscures the entire top portion of his head down to his eyebrows; because of the width of the mouth-strap, only a small portion of Davis’ face is visible above the mouth-strap and below the sponge, and that portion is bright purple and scrunched tightly upwards; his eyes are clenched shut and his nose is pushed so severely upward that it is barely visible above the mouth-strap; although the exterior openings of Davis’ nostrils are partially visible, it appears as though the interior openings may be covered by the mouth-strap; a stream of blood pours from his nostrils, flows over the wide leather mouthstrap, runs down his neck and chest, and forms a bright red pool (approximately eight by twelve inches) on his white shirt. (Provenzano v. Moore, 51–52) Although certainly powerful, pace Shaw, this visual evidence does not in fact speak for itself.2 Were it to do so, then any reading of these photographs, including that offered by Shaw, would be superfluous and so he would find it unnecessary to affirm, as he does in the sentence immediately following, that “[t]he scene is unquestionably violent” (Provenzano v. Moore, 52). What Shaw presents as a transparent reproduction in words of what human eyes cannot help but see is in fact better understood as a sort of performative utterance, one that participates in constructing the reality it claims to describe. That this reality can be fashioned otherwise is indicated, most obviously, by the majority’s quite different reading. Whereas Shaw seeks to transpose the violence he finds in this postexecution scene backward in time so that it infects the entire event from start to finish, the majority has no difficulty concluding that whatever signs of “violence” appear here are “accidental” and, as such, do not call into question the essential lawfulness of death by electrocution. Similar difficulties compromise the various forms of biomechanical evidence that are adduced in order to certify the reality of Davis’s status as a body in pain. That evidence is problematic because, in addition to

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being hidden behind an opaque wall of flesh, its relevance to Davis can only be inferred. For example, the brief filed with the Florida Supreme Court by Provenzano’s attorneys includes testimony from John Wikswo, who specializes in biological physics, biomedical engineering, and electrophysiology, and Donald Price, who wrote two chapters of The Handbook of Pain Assessment, cited in this chapter’s first section. “It may be possible,” Wikswo contends, “for an inmate to maintain consciousness for 15 to 30 seconds into the execution” (Initial Brief, 53). During this period, he concludes, the condemned “will” experience multiple forms of pain as skeletal muscles tetanize, as pain centers in the brain are directly stimulated, as respiratory muscles are paralyzed, and as carbon dioxide levels rise rapidly in the blood, producing a sensation akin to that of suffocation. The more circumspect Dr. Price, however, is obliged to concede that, although medical science can offer an account of the “effect of electricity on biological tissue” as well as an account of “what physiological reactions are likely to occur as a result,” it cannot in the last analysis do more than affirm that Davis “almost certainly experienced intense or severe pain during his judicial electrocution” (Initial Brief, 43–44). Once again, the absence of any necessary connection between physiological injury and the experience of pain saps the capacity to declare what otherwise seems so patently true. Eager to say something more definitive about Davis’s suffering, Price shifts from invisible interior mechanisms to observable external indicators. “The behaviors that have been witnessed” on the part of the condemned during judicial electrocutions “are in many cases classic signs of pain in human beings, particularly given the context in which these behaviors are displayed. People moan, gasp for air, move their head from side to side and scream. Normally those behaviors are indicative of pain and even severe pain” (Initial Brief, 40). But Price’s acknowledgment that the meaning of such behavior is not self-evident, that its import is contingent on an interpretation of the context within which it occurs, is precisely what denies him the ability to make the sort of emphatic claim that Justice Shaw requires. “People moan in their sleep,” continues Price. “You wouldn’t say that is pain; but if they are sitting in the electric chair and moaning, then it is much easier to infer the existence of pain” (Initial Brief, 40). Once again, this time from a behaviorist perspective, grasping the pain of another proves infernally elusive; its existence may be postulated on the basis of conduct and context, but its reality can never be affirmed beyond the shadow of a doubt.


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The dilemma encountered in the effort to make Davis’s pain real through an appeal to behavioral indicators takes one additional ironic twist that is worthy of note. When his body was undergoing examination as a preface to formal certification of death, several witnesses to the execution testified that Davis’s chest, much like that of Westley Allan Dodd, dilated one or two times after the current was shut off for the final time. Those movements, hypothesized Steve Wellhausen, an employee of the prison, looked like someone “flexing their chest muscles or contracting their chest muscles” (Initial Brief, 21–22). If these movements can be construed as efforts at respiration rather than as reflex responses, then that would indicate that brain stem activity was still present (which is not altogether implausible since the human skull partly insulates the brain from electrical current and so may prevent it from causing instantaneous unconsciousness). Moreover, if, as some witnesses contended, Davis continued to bleed (as opposed to simply dripping residual blood from his nasal cavities) at the close of the execution, that would indicate that his heart was still beating. And if his brain and heart were still functioning, then it is possible that Davis retained some measure of consciousness and so was capable of experiencing pain even after the third jolt was completed. But if that is so, then how are we to explain the absence of any sort of aversive behavior on Davis’s part during the intervals separating those three shocks? Surely, that indicates that he was not in pain. Or does it, given that electrical blasts of this magnitude stimulate each muscle to full contraction and so, in all likelihood, prevent the condemned from crying out or even moving when the current is stopped? In short, from the law’s standpoint, one of the unanticipated virtues of electrocution as a method of execution, much like the anesthesia that renders unconscious those sentenced to die by lethal injection, may be its ability to suppress the behavioral evidence that might otherwise cause us to fret about a body in pain. Given that it is possible to exhibit severe bodily damage and yet not be in pain, and given that it is possible to manifest all of the conventional signs of pain and yet not be in pain, the dissenters’ invocation of various forms of behavioral evidence proves no more conclusive, no more immune to skeptical dismissal, than did the evidence teased from Davis’s “voice.” And, indeed, when all is said and done, perhaps Davis was simply faking it. Or, less cruelly, perhaps what bleeding heart liberals take to be unequivocal indicators of pain are nothing more than

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muscular contractions caused by the application of intense electrical current. Are such speculations morally repugnant? Perhaps. But they are also essential to the integrity of a legal order that must deafen itself to the pain it cannot in good conscience justify. Only that, I assume, can explain the Fourth Circuit’s cynical assertion, in a case dealing with the gas chamber, that “graphic descriptions of the death throes of inmates executed by gas are full of prose calculated to invoke sympathy, but insufficient to demonstrate that execution by the administration of gas involves the wanton and unnecessary infliction of pain” (Hunt v. Nuth, 57 F.3d 1327 [1995], 1337–38). Political Pain The appeal to pain, construed in modernist terms, cannot furnish significant leverage to those who would challenge capital punishment on the grounds that it inflicts what students of constitutional law call “wanton” or “unnecessary” pain.3 In light of that conclusion, in this final section, more suggestively than conclusively, I want to indicate how we might begin to temper the incapacities of this construction by reconsidering the relationship between pain and language; and to do that I return to what I take to be the most seductive contemporary meditation on this question, Elaine Scarry’s The Body in Pain (1985). On the one hand, her account of this relationship is to be resisted. By endowing pain with a terrifying capacity to destroy all language, she renders it fundamentally incontestable and so not merely apolitical but even antipolitical. On the other hand, her account opens up political possibilities she herself does not recognize, and it does so by indicating how pain is sometimes transformed into language and, more specifically, the language of power. Much of Scarry’s analysis turns on what might be characterized as a hyperbolic rendering of the subjectivist account of pain: [W]hen one speaks about “one’s own physical pain” and about “another person’s physical pain,” one might almost appear to be speaking about two wholly distinct orders of events. For the person whose pain it is, it is “effortlessly” grasped (that is, even with the most heroic effort it cannot not be grasped); while for the person outside the sufferer’s body, what is “effortless” is not grasping


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it (it is easy to remain wholly unaware of its existence; even with effort, one may remain in doubt about its existence or may retain the astonishing freedom of denying its existence; and, finally, if with the best effort of sustained attention one successfully apprehends it, the aversiveness of the “it” one apprehends will only be a shadowy fraction of the actual “it”). So, for the person in pain, so incontestably and unnegotiably present is it that “having pain” may come to be thought of as the most vibrant example of what it is to “have certainty,” while for the other person it is so elusive that “hearing about pain” may exist as the primary model of what it is “to have doubt.” (1985, 4) As I noted in chapter 4, the radical solipsism of pain is, on Scarry’s account, a function of the fact that it, alone among interior states, has no referent beyond the body itself: “Though the capacity to experience physical pain is as primal a fact about the human being as is the capacity to hear, to touch, to desire, to fear, to hunger, it differs from these events, and from every other bodily and psychic event, by not having an object in the external world” (161). As such, the experience of pain is to be sharply distinguished from that of psychological suffering, which, “though often difficult for any one person to express, does have referential content, is susceptible to verbal objectification” (11). Acute physical pain, by way of contrast, encloses the sufferer within a private universe made all the more desperate by the realization that its agony points forever and only back upon itself. Because pain is idiosyncratically nonreferential in this sense, Scarry continues, it is singularly unresponsive to the claims of linguistic articulation: “This objectlessness, the complete absence of referential content, almost prevents it from being rendered in language: objectless, it cannot easily be objectified in any form, material or verbal” (1985, 162). The impoverishment of our contemporary vocabulary of pain is, therefore, not a function of its modernist construction, nor of its interested appropriation by the profession of medicine, but of its ineluctable reality as “a pure physical experience of negation, an immediate sensory rendering of ‘against,’ of something being against one, and of something one must be against” (52). Because that experience of aversiveness is indeed so elemental, we should not be surprised to discover just how narrow is the range of cultural variability with respect to ways

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of giving voice to pain. Its limited scope “expose[s] and confirm[s] the universal sameness of the central problem, a problem that originates much less in the inflexibility of any one language or in the shyness of any one culture than in the utter rigidity of pain itself: its resistance to language is not simply one of its incidental or accidental attributes but is essential to what it is” (5). Pain, Scarry continues, does not merely resist linguistic articulation; it also destroys the capacity to speak. Granted, when pain is unrelenting but not all-consuming, it may monopolize language, becoming its only subject, via the discourse of complaint. However, when acute and unyielding, it aggressively demolishes the contents of consciousness and, in so doing, eliminates our capacity to project ourselves into an intersubjective world of shared meanings: “At first occurring only as an appalling but limited internal fact, it eventually occupies the entire body and spills out into the realm beyond the body, takes over all that is inside and outside, makes the two obscenely indistinguishable, and systematically destroys anything like language or world extension that is alien to itself and threatening to its claims” (1985, 55). As “the coherence of complaint is displaced by the sounds anterior to learned language” (54), what was once a person becomes something ever less recognizable as a human being, ever more exclusively defined by its entrapment within a vicious circle of corporeal torment. With this account, I believe, Scarry has offered an eloquent articulation of the distinguishing features of what I have called “modernist” pain. Her insistence on “the ironclad privacy of the body” (1985, 60) and so pain’s essentially unsharable character, her representation of it as uniformly aversive, her Cartesian distinction between psychological suffering and physiological pain, and, finally, her conviction that language must remain forever frustrated in its efforts to represent this invisible interior reality, all betray her endorsement of a cluster of modernist presuppositions that would have been more or less unintelligible, for example, to Blaise Pascal. Scarry, of course, must reject this reading of her argument since it entails representing as culturally and historically specific what she must deem acontextual and timeless in order to sustain her affirmation of pain’s “universal sameness” and, more particularly, her insistence upon its utter absence of referential content. Scarry’s essentialism in this regard becomes problematic in a specifically political sense when it is joined to her contention that “the


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relative ease or difficulty with which any given phenomenon can be verbally represented also influences the ease or difficulty with which that phenomenon comes to be politically represented” (12). If pain is indeed characterized by the sort of all-consuming brute facticity ascribed to it by Scarry, then it is not clear how it can ever become a subject of political representation, let alone contestation. That unhappy conclusion cannot help but compromise the efforts of those, like Robert Cover, who seek to highlight the mutual imbrication of law and pain, but who at the same time are sufficiently taken with Scarry’s argument to adopt it as their own (see Cover 1986, 1601–2). Although I only allude to it here, one way to call into question Scarry’s reading of the relationship between pain and language is to affirm what she must deny, that is, the extensive cross-cultural variability apparent in discourses of pain.4 The significance of that variability will be incompletely realized, however, so long as it remains informed by the realist distinction, implicit in most discussions of pain’s cultural construction (and expressly affirmed by Ivan Illich [1976]), between the brute neurological reality of pain sensations and culturally specific experiences of them.5 So long as we endorse that distinction, we will be tempted to embrace Scarry’s contention that, in speaking of pain, “the human voice must aspire to become a precise reflection of material reality” (1985, 9), to burrow beneath these various cultural articulations in order to discover the language that pain would itself speak, if only it could. Within a culture prone to scientism, that representationalist aspiration cannot help but bolster the medical profession’s assertion of its own special competence to articulate the truth about pain, and the hegemonic pretense of that conviction, not the nature of pain itself, will make it exceedingly difficult to move toward a specifically political conception. To enable such a conception, I propose that we begin by adopting a constructivist as opposed to a representationalist view of the relationship between language and pain. This is not to urge a simple discursivist reformulation of the behaviorist account of pain, one that effectively equates the sentence “I am in pain” with the experience of being in pain or, still less plausibly, one that considers that sentence to be pain’s cause. But it is to reject what Ludwig Wittgenstein (1953) called the “picture” theory of language, one that in this instance regards “pain” as an inert label that merely describes or expresses an

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antecedent or extradiscursive object. To posit the reality of pain prior to or independent of language is still to posit that reality; and that very act of positing necessarily entails the invocation of a culturally specific and politically valenced construction of its alleged object. The work accomplished by that construction will go unrecognized so long as we forget, for example, that the figuration of pain as a mechanistic event caused by nociceptive impulses traveling along neural pathways between the site of tissue damage and the brain is less an indicator of pain’s true nature than of the contemporary medical profession’s success in defining that reality. “We experience pain,” contends David Morris, “only and entirely as we interpret it” (1991, 29). By this, I take Morris to be claiming that all vocabularies of pain are quasi-performative in the sense that they participate in fashioning the reality they are said to represent; and this is so regardless of whether one considers the words we cite to communicate the qualitative dimensions of pain (e.g., sharp, searing, unbearable, etc.), or the less nuanced but nonetheless meaningful sounds we make when pain more radically incapacitates (e.g., screaming, moaning, etc.). “[T]he manner in which pain is expressed—either in a reserved, contained fashion, or disclosed in an explosion of wails and moans—has a direct relation to the way in which pain is actually borne and, in the fullest sense of the term, to what is actually felt. The very act of proclaiming one’s pain, beyond what is actually manifested and beyond the meaning it projects, has a direct effect on the reality of the experience without our being able to fully determine whether the actual expression brings relief by liberating, or perhaps amplifies the feeling through an echoing phenomenon” (Rey 1995, 4–5). If Roselyne Rey is correct in this regard, then perhaps we should reconsider Scarry’s contention that pain is defined by and distinguished from all other phenomena by its radical absence of any referential content. If the language of pain is constitutive of its object, then it seems more plausible to suggest that its intelligibility, indeed its recognizability as pain, is a function of whatever referential content it acquires via its discursive formulation. The absence of any designation for what we would call “pain” in the Dictionnaire de théologie, to recall an example cited earlier, should be sufficient to unsettle our received conviction that what the body endures can be segregated from the categories that render that suffering meaningful.


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To note the cultural variability of pain’s discourses is useful because it causes us to question the apparent self-evidence of the English grammar of pain, especially as it informs the biomechanical conception. To give this insight a constructivist twist is still better because we are thereby prompted to ask how language fashions the reality it is thought to mirror. Together, these moves cast doubt on Scarry’s contention that the possibility of pain’s political articulation is essentially compromised by the recalcitrant character of the object to be afforded voice. That difficulty, on my account, has more to do with our modernist construction of pain, which occludes its political dimensions, than with the nature of pain per se. That these dimensions are recoverable is indirectly intimated by the etymology of the term itself. The English word pain derives from a Latin noun that originally bore the sense of punishment, tax, penalty, or fine (poena). Under the influence of Christianity, this term’s associations with legal notions of wrongdoing and its rectification were partially displaced as it, although retaining the sense of punishment, came to refer more generically to an ineradicable mark of a sinful human condition. This, however, did not altogether eliminate the specifically legal sense of the term, a fact indicated by the presence in Old English of two terms (pinian and peyne), one of which suggested a notion of general suffering and the other punishment for crime. Only after 1500 did these terms acquire sufficient phonological similarity to merge into the single term pain (see Fabrega and Tyma 1976b). The gradual secularization of this abstract noun, especially via its medicalization in the nineteenth century, effectively extirpated all remaining associations with the concept of legal punishment. Although no doubt too hasty, this etymological excursus hints at the possibility of recovering an expressly political account of pain. Ironically, Scarry herself realizes this possibility, if only in part, through her analysis of torture, which, she argues, involves the “transformation of body into voice” (1985, 45) or, more specifically, pain’s translation into political power. The practice of torture subverts the categorical opposition between language and pain that Scarry must affirm for other purposes, and it does so in two ways. First, on her analysis, language can itself become a cause of pain, as it does during an interrogation: “The question, whatever its content, is an act of wounding; the answer, whatever its content, is a scream” (46). Second, and more important for my purposes, the body in pain can itself become something akin to a

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discursive artifact, one that speaks of and affirms the totality of sovereign power: While torture contains language, specific human words and sounds, it is itself a language, an objectification, an acting out. Real pain, agonizing pain, is inflicted on a person; but torture, which contains specific acts of inflicting pain, is also itself a demonstration and magnification of the felt-experience of pain. In the very processes it uses to produce pain within the body of the prisoner, it bestows visibility on the structure and enormity of what is usually private and incommunicable, contained within the boundaries of the sufferer’s body. It then goes on to deny, to falsify, the reality of the very thing it has itself objectified by a perceptual shift which converts the vision of suffering into the wholly illusory but, to the torturers and the regime they represent, wholly convincing spectacle of power. The physical pain is so incontestably real that it seems to confer its quality of “incontestable reality” on that power that has brought it into being. (27) In acknowledging torture’s status as a language, Scarry effectively concedes that the pain occasioned by that meaningful practice is itself discursively mediated. Were that not the case, were pain as “monolithically consistent in its assault on language” (13) as she suggests elsewhere, then it would be unavailable for political appropriation in the interest of buttressing claims to incontestable power. What I wish to ask in closing is whether there is any reason to believe, as Scarry apparently does, that pain can be politically appropriated only in the service of affirming state power. If, as she insists, recourse to torture is itself a sign of a regime’s instability, is it possible that the pain implicated in the law’s very existence might be rendered visible in a way that discloses the contestability of state power? That this possibility is unimaginable to Scarry is made clear when she contends that, if we are to prevent pain from being converted into a regime’s fiction of power, without exception we must insist that it be referred back to the suffering human body: “The failure to express pain—whether the failure to objectify its attributes or instead the failure, once those attributes are objectified, to refer them to their original site in the human body—will always work to allow its appropriation


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and conflation with debased forms of power; conversely, the successful expression of pain will always work to expose and make impossible that appropriation and conflation” (14; emphasis added). No matter how ethically commendable, what this claim fails to recognize is that so long as the pain referred back to the human body is construed in modernist biomedical terms, as state agents are all too quick to do, it will be rendered solipsistic, deniable, and immune to political engagement. Scarry argues that “at particular moments when there is within a society a crisis of belief—that is, when some central idea or ideology or cultural construct has ceased to elicit a population’s belief either because it is manifestly fictitious or because it has for some reason been divested of ordinary forms of substantiation—the sheer material factualness of the human body will be borrowed to lend that cultural construct the aura of ‘realness’ and ‘certainty’” (1985, 14). Is it possible that our understanding of the normative status of pain within the law is itself a cultural construct that has now been “divested of ordinary forms of substantiation” and so become questionable? Is that not precisely what we would expect within a liberal political order that can no longer provide persuasive justification for the harm it inflicts upon those whose bodies, in the last analysis, are incidental to their status as juridical persons? Is it possible that the palpable body in pain, once an indispensable means of substantiating the state’s claim to authority, now threatens to delegitimate that same claim? Is not the horror elicited by the blood shed by Allen Lee Davis an indication of just such a crisis? And if that is so, then how might Davis’s blood become the sort of discursive artifact that raises questions not only about whether he did or did not experience pain, but also about the rightful status of that state’s claim to impose death as its ultimate punishment? As I noted in chapter 2, the troublesome implications of the violence that is integral to the liberal body politic are checked, in large measure, by demarcating and then policing the boundaries between the legislative institutions that adopt capital punishment statutes, the judicial organs that impose death sentences, and the executive officials that make live bodies dead; and, as I have tried to show over the course of this chapter, the security of these boundaries is reinforced by a biomedical conception of pain that locates suffering squarely within the opaque confines of the body’s interior. If these insidiously complementary border projects are to be politicized, perhaps we ought not to insist

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on “the sheer material factualness of the human body.” Perhaps, instead, we should affirm what Scarry elsewhere calls the body’s “referential instability” (1985, 121). To do so is not to argue that the body can be free of all referential content. Rather, it is to ask how the rationalized body of late modernity might be stripped of its apparent selfevidence as well as how that body’s suffering might begin to overflow the borders that now secure the antipolitical alliance of a medical profession that affirms its hegemonic authority over the meaning of pain and a state that affirms its monopolistic control over the means of legitimate violence.

Chapter 6

Womanhood Unsexed on the Gallows

“I say gender should not play any role in this at all” (Karla Faye Tucker, quoted in Pederson 1998, 66). With all due respect for the dead, this chapter is predicated on the belief that Tucker was wrong. To disregard the question of gender in making sense of her execution on February 3, 1998, the second state-sponsored killing of a woman since the Supreme Court cleared the way for reimposition of the death penalty twentytwo years earlier, is to fail to understand why this media extravaganza elicited such barely concealed glee from feminism’s detractors. When George W. Bush, then governor of Texas, denied Tucker’s plea for clemency, insisting that his paramount “responsibility is to insure our laws are enforced fairly and evenly without preference or special treatment” (New York Times, February 4, 1998, A17), he gave respectable voice to the rancor of those who contended that feminists had at last been shown the ultimate import of their quest for full equality.1 With very few exceptions, feminists have failed to explore the relationship between gender and the death penalty; and in that limited sense, perhaps, they have helped to sustain the conditions of Tucker’s mistake. While there is now a voluminous body of scholarship on women in the criminal justice system, and while there is a rapidly growing literature on capital punishment, there is precious little that pulls these two together from a distinctively feminist standpoint. From one point of view, this is not surprising given that the number of women sentenced to death and executed in the United States is so small in comparison to that of men. From another, that disparity should itself be a provocation to critical inquiry. In order to establish a context for the primary argument of this chapter, in the section that follows, I offer a very brief history of the 165

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relationship between gender and capital punishment in the United States as well as an equally abbreviated account of the principal academic controversy concerning how best to explain the relative paucity of women who have been sentenced to death. In the second section, in an effort to step beyond the confines of this controversy, I indicate why I am convinced that the late liberal state is damned if it does and damned if it doesn’t execute women. How that state can be expected to negotiate this tension is the subject of my closing remarks. Capital Punishment of Women in the United States Sentenced to death for the crime of murder in 1632, Jane Champion of Virginia was the first woman to be lawfully executed in the American colonies. When Karla Faye Tucker is included among the other 41 women executed during the twentieth century, and 4 more are added since the turn of the new millennium, the documented total over more than three and a half centuries comes to 537. By way of comparison, there have been over nineteen thousand confirmed executions of men during this same span. In sum, less than 3 percent of the persons executed since 1608 have been women; and it is on the basis of this figure that Victor Streib and Lynn Sametz conclude that “the strong support for the death penalty in our society may be limited to the death penalty for adult male offenders” (1989, 58; see also Streib 1990, 1998). Of these 537 women, virtually all were executed under local or state authority, and more than 9 out of 10 were put to death prior to 1866. Approximately two-thirds of the overall total were AfricanAmerican, a fact that would appear to mandate a qualification of the contention that America’s enthusiasm for capital punishment is confined to men. More specifically, close to one-half consisted of slaves who were put to death in the South during the Civil War and the decades immediately preceding it. The crimes for which these women were executed, committed as a rule against their owners or some member of his family, included attempted homicide, homicide, attempted arson, arson, assault, and conduct unbecoming of a slave (classified either as rebellion or as petty treason). By way of contrast, almost all executed white women have been found guilty of homicide, with the noteworthy exception of the late seventeenth century when 27 women were killed in New England for the crime of witchcraft. In the twenti-


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eth century, the racial identity of executed women reversed the pattern established during the nineteenth; 1 out of 3 was black, with whites accounting for the bulk of the remainder. As of April 2001, there are fifty-six women awaiting execution, about 1.5 percent of the total death row population. Virtually all, not surprisingly, are poor; and close to half, estimates Kathleen O’Shea, have a history of abuse and have been sentenced to death for the murder of an abusive spouse or lover (1993, 81). Indeed, throughout U.S. history, the typical victims of women given capital sentences have been persons well known to them. This pattern contrasts sharply with that of death-sentenced men, who, as a rule, are convicted of killing strangers in conjunction with some other felony; the convenience store robbery gone awry is the paradigmatic example. Put differently, over threequarters of the death sentences pronounced in this country are imposed on felony murderers animated by some predatory purpose, that is, the prospect of some gain, whether material, sexual, or otherwise. Only a very small fraction of the murders committed by women, however, fall into this category. This difference becomes important when we ask why, as all agree, women are roughly twenty times less likely to be death sentenced than are men. “It is difficult to understand why women have received such favored treatment,” wrote Justice Thurgood Marshall in Furman v. Georgia (408 U.S. 238, 365 [1972]), “since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes” (365). Streib has suggested that gender bias accounts for the legal order’s aversion to killing women (1990, 874–78) and, by implication, for the superficial plausibility of Marshall’s representation of condemned men as victims of the law’s partiality. Specifically, Streib has argued that women are less likely to be sentenced to death because they are more often seen as viable candidates for rehabilitation, whereas men are more likely to be deemed incorrigibly violent. Moreover, gendered cultural stereotypes encourage judges and juries to wonder whether women defendants are in fact able to muster the autonomy necessary to demonstrate full criminal intent. Consequently, women can more readily contend that they killed while subject to the domination of another, that they were emotionally or mentally disturbed at the time they committed their crimes, or that they acted without premeditation.

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While an explanation in terms of gender bias may indicate why women are so rarely sentenced to die, it must be supplemented in some fashion if we are to explain why some in fact are. “[W]omen who are sentenced to death,” argues Jenny Carroll, “are women who exist furthest from the collective center of traditional social and female roles. Their racial or socio-economic status preclude[s] them from the protection of their sex long before they engage in crime because their poverty, race, or social situation makes it impossible for them to conform to the social ideal of womanhood” (1997, 1436–37). If the norms constitutive of “true” womanhood are derived from our stereotypical conception of middle-class white women, then it would seem to follow that AfricanAmerican women and poor women more generally will prove unable to derive from their gendered identity the same protection afforded to those who better enact these norms. Victoria Brownworth offered still more striking evidence in support of Carroll’s argument when, in 1992, she estimated that seventeen of the forty-one women then on death row were lesbians (62). When a woman who violates the norms of compulsory heterosexuality also proves capable of homicide, especially should that violence be directed against an intimate, her transgression renders her a prime subject for the demonization that is a necessary condition of the death sentence’s imposition. To execute that sentence is to rearticulate and reaffirm traditional understandings of femininity subverted by, among other things, the rise of contemporary feminism. The gender bias explanation advanced by Streib and others is not without its detractors (see, e.g., Rapaport 1990). The small number of women on death row and in the death chamber may be explained, perhaps with equal plausibility, by pointing to the fact that women only commit about one-eighth of this nation’s murders, that they are much less likely to have established criminal records, and, as already noted, that they are unlikely to commit felony murders and so to be sentenced to die on the basis of this aggravating circumstance. While these factors may call into question Streib’s claim that juries and judges, motivated by chivalry, refuse to impose the death penalty on women whose crimes are identical to those of condemned men, their citation should not be taken to imply that a gender neutral analysis can adequately explain capital sentencing patterns. For example, when we ask why it is that women so infrequently kill, when we ask why women who do kill typically do so out of passion rather than for gain, when we ask how


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jurors and judges interpret and deploy various statutorily defined aggravating factors (e.g., future dangerousness, the likelihood of rehabilitation, the cold-bloodedness of any given murder), we soon find cause to suspect that these ostensibly nongendered factors are deeply bound up with the reproduction of normative constructions of genderappropriate conduct. In addition, it is at least arguable that feminist inquiry should be directed toward the content of homicide law itself. Why is it, asks Elizabeth Rapaport (1990), that the homicide statutes of most states, in listing aggravating factors, implicitly declare that the sort of felony murder typically committed by men and of strangers is more deserving of death than is the sort of intrafamilial or intimate homicide typically committed by women? Women’s traditional interest in the sanctity of the home, its peace and safety, is not supported by the prestige that would be symbolically conveyed by the attachment of the capital sanction to the most egregious family homicides. . . . Current law holds it to be more heinous to kill for gain than to kill a spouse or child in anger. From a feminist point of view, the privileging of robbery murder but not domestic murder as among the most serious homicides expresses the male orientation of the law of homicide. (558–60) On this account, the question to be asked is not how gender-based stereotypes taint the decisions of prosecutors, judges, and juries, but rather how the hierarchy of evils articulated by contemporary homicide law reflects a patriarchal culture that, until just recently, deemed domestic violence beyond the law’s purview; and, at the same time, effectively discredits women by failing to find the sort of murder they most often commit worthy of the law’s supreme penalty. The reactionary prescription that might appear to follow, as Rapaport recognizes, is legal codification of a new aggravating factor (the murder of intimates), one whose application would almost certainly generate a larger number of death-sentenced and executed women. As this discussion suggests, to the extent that the question of women and the death penalty has emerged as a subject of academic discourse, that inquiry has generally taken shape as a more specific version of the controversy concerning the presence of gender bias in the

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criminal justice system; and, for the most part, that discussion has been conducted in the vernaculars of law, history, and statistics. Without denying the validity of this question or these idioms, my purpose in the remainder of this chapter is to situate this issue within a broader context, one that concerns the liberal state’s perennial quest to legitimate the exercise of its authority. That quest becomes especially strained, I suggest, when the state’s most dramatic expression of its self-proclaimed monopoly over the means of legitimate violence is brought to bear on women. The Death Sentence in an Age of Gender Trouble In 1859, an unsigned article in the New York Times included the contention from which this chapter’s title is taken: “The same feelings which make civilized men shrink from the spectacle of womanhood unsexed by woman herself on the platform or in the field, make them shudder at the thought of womanhood unsexed by man at the whipping-post, or on the gallows” (April 15, 4). One year later, Wendell Phillips offered a fitting rejoinder: “You have granted that woman may be hung, therefore you must grant that woman may vote” (quoted in Stanton, Anthony, and Gage 1881, 701). The second of these claims presupposes liberalism’s aspiration to universal formal equality, while the first assumes that some are not altogether fit to shoulder the burdens and benefits that accompany realization of this ideal. That this tension still disturbs our thinking about the relationship between gender and capital punishment is suggested by two public opinion polls conducted over the course of the past decade. In 1994, approximately 85 percent of Texans endorsed the death penalty. In 1998, six weeks after the execution of Karla Faye Tucker, a second poll indicated that support for capital punishment in the Lone Star State had taken a nosedive, falling to 68 percent. While it is perhaps true, as the New York Times speculated, that the execution of Tucker demonstrated that the nation “had passed some psychological threshold that augured an increase in executions of women” (Verhovek 1998b, 1), it seems equally clear that our collective psyche is troubled by this dubious accomplishment. That such uneasiness is accompanied by a certain titillation, a thrill at violating an engrained taboo, was also intimated when CNN announced that its


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documentary on Tucker’s death was the network’s most-watched program in the month of February. The brouhaha generated by the execution of Tucker invites us to explore some of the paradoxes posed by the late liberal state’s halfhearted incorporation of women within the public sphere. With respect to those paradoxes, in this section, I argue that the authority of the late liberal state is now unsettled; that one way to reaffirm its authority is to demonstrate its sovereign capacity to exact from subjects the sacrifice of life; that some dead bodies are better suited to fulfill this function than are others; that the question of whether or not to execute women poses an insoluble dilemma for the liberal state; and, finally, that this state, as a way of muddling through this predicament, is likely to sentence an ever larger number of women to death, but to execute relatively few. I begin from the premise, made familiar to us by Jürgen Habermas (1973) and William Connolly (1991), that the late liberal state is beset by what Habermas calls a chronic “legitimacy deficit.” The causes of this deficit, which in the context of the United States afflict the individual states as well as the federal government, are many. To cite but one, a capitalist economy requires various forms of costly state support, including investment subsidies, tax incentives, the enforcement of contracts, external defense and internal security, the construction and maintenance of infrastructure, and so forth. At the same time, for reasons ranging from the electoral prospects of its officeholders to its competitiveness in international markets, the liberal state depends on the successful pursuit of profit by private investors. As a result, that state cannot readily extract from a corporate economy the financial resources it must have if it is to respond effectively to the mounting burdens and expectations imposed upon it; the most egregious indicator of this bind is the chronic impoverishment of the politically powerless, but many others might be cited as well. The problematic consequences generated by the state’s incompetence on this and other fronts intensifies, of course, in an ever more globalized political economy, one that mocks its pretensions to sovereign autonomy and hence its self-representation as the singular agency through which our collective will is emphatically done. In order to prop up its troubled authority, the state must cultivate

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the appearance of institutional efficacy. Toward that end, as Murray Edelman (1967) noted decades ago, governing bodies are forever tempted to engage in symbolic politics. The debacle dubbed the war on drugs is a conspicuous example; and in much the same terms, I suggest, can we make sense of the generally uninterrupted increase in the annual number of executions since the Supreme Court authorized their resumption in 1976. If the state cannot readily occlude its ineptitude on the home front, and if at the same time it cannot tame what Connolly calls “the globalization of contingency” (1991, 25), whether assuming the form of nonstate terrorism, the greenhouse effect, illegal aliens, the transcontinental transmission of disease, and so on, it can nonetheless substantiate its mythical claim to sovereign authority via the carefully orchestrated drama of political power that is an execution. That the American citizenry is fully complicitous in the cultivation of this myth—that we too wish to be reassured of the state’s capacity to act with irrevocable finality—is suggested by the degree of public consensus in favor of capital punishment even after its systemic flaws have been disclosed, as has been the case repeatedly over the course of the past half decade. Why is it, though, that human bodies in general, and dead ones more particularly, are so well suited to the task of reinvigorating state authority? Elaine Scarry offers a possible explanation. In The Body in Pain (1985), as I noted in chapter 5, she argues that when convictions central to a culture’s self-conception no longer appear self-evidently so, the brute facticity of the body is often appropriated in order to secure for these immaterial creatures of collective invention a revitalized aura of transcendent authority. Although Scarry draws most of her examples from the domains of war and torture, another instance of what she calls “analogical verification” is human sacrifice. On her account, this practice can be understood as a ritual through which a collectivity’s intangible beliefs about the supernatural are reaffirmed, made to appear as something unmade, via their materialization within the palpable reality of a body in pain or, alternatively, a corpse: “Unable to apprehend God with conviction, they will—after the arrival of the plague or the disease-laden quail or the fire or the sword or the storm— apprehend him in the intensity of the pain in their own bodies, or in the visible alteration in the bodies of their fellows or in the bodies (in only slightly different circumstances) of their enemies” (201). Because nei-


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ther the invisible word of God nor the incorporeal authority of the liberal state is self-authenticating, both demand confirmation in the realm of matter. And what better matter than that of the human body, especially given that the hyperbolic ideal of sovereign power over life and death, whether divine or secular, finds its primordial source in the concrete capacity of women and men to harm and sometimes to kill one another? Executed bodies perform their political mission well when their utter impotence, their absolute lack of vitality, testifies to the robust agency of the state; the consummation of a death sentence is one of the more striking means by which, to quote Scarry again, “real human pain” is “converted into a regime’s fiction of power” (1985, 18). What Scarry fails to ask, however, is whether some bodies are better than others at satisfying the imperatives of analogical verification. Arguably, today, African-American bodies, especially if male, are best able to do so, at least within the confines of the United States. In such cases, the ultimate sacrifice is exacted from persons whose antecedent marginalization marks them as beings whose elimination from the body politic will reconsolidate, if only in part, the dominant collective identity presently under assault by forces the state can no longer contain. But what about women? This is a complicated question, in part because considerations of race and gender may point in opposing directions when considering the suitability of candidates for the labor of analogical verification. Apparently, as the first section of this chapter implied, the corpses of African-American women served as tolerably effective substantiations of a slave order’s unsteady claim to authority in the years just prior to and during the Civil War. What might otherwise have occasioned horror, the execution of women, was offset by a racial identity that coded these beings, especially once accused of crimes against their masters, as something other than women, as animals, as monsters. However, as the example of Karla Faye Tucker hints, it is not quite so easy to divest a white woman of her gendered identity and so to overcome the ambivalence occasioned when the state puts to death a person belonging to a class it is otherwise pledged to protect.2 This dilemma grows still more thorny within a regime that is rhetorically committed to the principles of liberalism. The success of analogical verification turns on the capacity of the material to substantiate the uncertain reality of the immaterial, and that in turn requires an

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obdurately concrete body. From the standpoint of liberalism, however, the problem with such a body is that it is far too concrete in the sense that it is particularistically marked by gender, by race, by class, and so forth. If a liberal regime is to make good on its promise of formal equality, if its justice is to be truly blind, the body caught up within its legal complex must become an abstraction—a being stripped of all the differentiating features that make it this body rather than that. But can such a deracinated juridical subject perform the reality-conferring work of analogical verification? (In chapter 7, to anticipate, I ask whether execution by lethal injection similarly compromises the project of analogical verification.) The example of black men, I would argue, suggests that such a subject can do so only when its body reabsorbs all of the individualizing features (in this instance, its racial identity) that liberalism must seek to expunge in order to satisfy its own legitimation imperatives. Whether the executed bodies of women can do the work of analogical verification is a question that cannot be answered unambiguously. From one point of view, the state-sponsored killing of an occasional woman materializes and so reinforces the liberal ideal of equality before the law, a principle that is otherwise mocked by the incredibly long odds against achieving this status.3 Arguably, such an event generates internal as well as external legitimation effects. By persuading those within the legal system, whether juror, judge, police officer, or warden, of the essential fairness of death penalty adjudication, the execution of a woman now and then may help to quiet whatever lingering qualms these state agents may have about a regime that mandates calculated acts of licensed violence. Beyond the confines of the legal system, if the occasional execution of a woman legitimates capital punishment as a practice by demonstrating the sincerity of the liberal state’s commitment to formal equality, and if the right to put persons to death is one of the defining traits of political power in a liberal regime, as John Locke (1988) informed us over three centuries ago, then such killings may bolster public endorsement of that state’s claim to monopolistic control over the means of legitimate violence. While the execution of women may corroborate the story we tell ourselves about liberal law’s abstraction from various sources of ostensibly nonpolitical differentiation, it simultaneously disturbs other tales to which we are equally committed. More often than not, as I explained


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in contrasting the typical homicides committed by each gender, when women murder, their victims are known to them, often intimately. Such violence provokes anxiety because it unsettles our conventional understanding of the sphere to which liberalism has historically relegated women, a sphere putatively governed by the norms of uncoerced affection, of spontaneous altruism, of maternal nurturance. To sentence such an embodiment of gender trouble to death, a legal determination that entails ascribing to her the sort of autonomous criminal intent customarily reserved to men, is perhaps to allay the unease her deed has aroused. But to actually extinguish the life of that body, one that is routinely excluded from frontline combat duty in order to shield it from violence, is to highlight once again the sort of hypocrisy Wendell Phillips identified when he suggested that women’s liability to the law’s harshest punishment is inconsistent with her disenfranchisement at the polls. Perhaps more significantly, the execution of a woman effectively accentuates the harsh realities of capital punishment by bringing the state’s full force to bear on a body conventionally coded as docile, as nonpredatory, as in need of masculine protection. If the punitive conduct of a liberal order is to remain congruent with the sensibilities of a culture given to humanist claptrap, its formal political organs must do what they can to obscure the brutality of official killing. Because the execution of a woman harbors the potential to undercut this goal, it may impair the state’s quest to secure unequivocal control over the semiotic import of its violence. As such, its effect may be not unlike that produced by a botched execution, one in which the state’s script for the perfect judicially mandated killing goes awry because its discursive, technological, and embodied constituents do not seamlessly cohere. As this last point suggests, the relationship of gender to capital punishment cannot be understood absent consideration of other developments in the rationalization of state violence. Consider, for example, the shift from public to private executions in the nineteenth century, which I traced in the context of England, as well as the more recent turn from hanging, shooting, gassing, and electrocution to lethal injection, which I take up in chapter 7. Although the latter helps to sanitize the state’s violence and the former makes it more difficult to contest its construction by the voice of officialdom, these moves simultaneously complicate the task of analogical verification. By transforming the dead

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body into an abstraction, an unseen entity that bears no visible traces of the harm it suffers, these reforms vitiate much of the legitimating benefit the state might otherwise derive from more palpable confirmation of its intangible pretense to sovereign authority. On the one hand, because it affords the death-sentenced body a measure of concrete specificity, the execution of a woman may help the state offset the legitimation costs incurred when capital punishment becomes a routinized deed performed behind closed doors and upon liberalism’s disembodied legal subjects. On the other hand, and precisely because it does remind us of the body’s sexed character, the execution of a woman may destabilize this method of revalorizing state authority, and that may prove true for persons who occupy very different places on the political map. As the two polls cited in the opening paragraph of this section suggest, those who were once more or less uncritically wedded to the rightness of capital punishment (e.g., many identified with the Christian Right) may find that commitment shaken when the “wrong” sort of body is disposed of. At the same time, others of very different political persuasion may be induced by this event to ask about the relationship between capital punishment and acts of violence against women that are condoned but not formally authorized by the state. In sum, when it comes to killing women, it would appear that the late liberal state is damned if it does, and damned if it doesn’t. A Modest Prediction What, then, is a troubled state to do? It would be a mistake, I think, to anticipate an accelerating trend on the basis of the execution of Karla Faye Tucker and the five women who have followed her into the death chamber since 1998. Granted, given that incarceration is now a growth industry, one that is vital to the economic well-being of many communities, we should expect the number of persons jailed to rise steadily, and so it seems not implausible to predict that more women will be imprisoned and that, possibly, more will be sentenced to die. Relatively few, however, are likely to be executed. More probably, as Robert Weissberg (1983) has argued with respect to capital punishment generally, state agents will stumble unwittingly and unconcertedly toward discovery of the optimal ratio of death sentences relative to actual executions, where the measure of optimality is the figure that most ade-


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quately secures a tolerable compromise among the various internal and external demands imposed on the state.4 The two demands that I have cited here are, first, the equalitarian pressure on the liberal state to rationalize the relationship between gender and criminal law, that is, to treat similarly situated male and female criminals as if they were genderless, and by extension to execute more women; and, second, the inegalitarian pressure to leave intact and, if possible, to reinforce the cultural norms that tend to exempt women from capital punishment while leaving them prey to other less well-publicized forms of violence.5 What these competing pressures may well generate is an incremental increase in the number of persons sentenced to death, men as well as women, combined with more or less unrestrained operation of the discriminatory practices that insure that actual execution is reserved for the most vulnerable or despised, women as well as men. Only if the bodies of these few, standing in for the many, are not up to the task of analogically verifying troubled state authority will it prove politically expedient to pursue a more dramatic acceleration of its machinery of death.

Chapter 7

Needling the Sovereign

“The point is to make what you see as uneventful as possible” (Sarasota Herald-Tribune, March 3, 2000, ZB). So said C. J. Drake, spokesperson for the Florida Department of Corrections, shortly after that state completed its first two executions by lethal injection. But how exactly does one render an event “uneventful,” an occurrence that never altogether happens? To answer that question, consider the criteria John Lofland recommends that we employ in assessing the “dramaturgy” of different ways of inflicting capital punishment. Nine elements, he suggests, are relevant: “the reliability of the technique, the temporal duration of lethal application; the amount and kind of noise it makes; the amount of pain it inflicts; the amount and kind of sound it elicits from the condemned; the amount and kind of bodily mutilation the technique causes; the amount of movement by the condemned it produces; the visibility of the condemned during and after application; and the amount and kind of odors associated with the technique” (1977, 309). If, Lofland continues, one wishes to heighten the spectacular quality of an execution and, in doing so, make “inescapably clear the existential fact that a human being is being killed,” the technique employed “should be highly unreliable and ineffective, take a long time to work, make a great deal of noise, mutilate the body, and inflict terrible pain, causing the condemned to cry out in anguish and struggle strongly to resist— all of which actions are highly visible to witnesses and accompanied by noxious and abundant odors” (1977, 310). Death by lethal injection falls short when measured by any of these criteria; and it is for precisely that reason that Mr. Drake, had he been asked, would no doubt have praised this method in virtue of its “humanity.” What he said instead was perhaps still more telling: “We’re definitely trying to make the process as clinical as possible” (Sarasota Herald-Tribune, March 3, 2000, ZB). 179

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In several of the preceding chapters, I suggested that the practice of capital punishment articulates certain dilemmas of the liberal state in America. In this, the first section of this final chapter, I will maintain what I do not believe to be so, that is, that lethal injection, as heir to various transitional technologies (e.g., electrocution and lethal gas), successfully overcomes those same dilemmas. Before making that case, however, it is well to review the particulars of this way of killing. Although considered as early as 1888, when it was rejected by New York in favor of electrocution, lethal injection was not adopted by any state as a method of execution until 1977. That Oklahoma did so directly on the heels of the Supreme Court decision in Gregg v. Georgia (428 U.S. 153 [1976]), which authorized states to resume the practice of capital punishment after the brief hiatus mandated by Furman v. Georgia (408 U.S. 238 [1972]), hints that its adoption may have had little to do with humanitarian concerns, but much to do with identifying a method that would temper opposition to the death penalty and reduce if not eliminate court challenges by the condemned.1 Given its relative success in both regards, it should come as no surprise to learn that, with the exception of Alabama and Nebraska, every state currently committed to the death penalty, as well as the federal government and the U.S. military, now specifies lethal injection as its default method of execution. Nor should it come as a surprise to learn that, of the 364 executions conducted in the United States between January 8, 1997, and July 17, 2001, only 23 employed means other than lethal injection. While lethal injection protocols differ somewhat from state to state, that employed by Arizona is not atypical (see Dayan 1997, 42–43). In that state, at some point during the day prior to the execution proper, medical personnel examine the condemned in order to assess his or her physical condition and, more specifically, the accessibility of veins. Blood is then drawn in order to detect any illegal substance, which might compromise the effectiveness of the drugs to be administered, or any communicable disease, which might endanger the members of the execution team. After the inmate is moved by the Restraint Team to the holding cell adjacent to the death chamber, the members of the Special Operations Team inspect the lethal injection apparatus, inventory the chemicals, and conduct a practice session. As the designated execution time approaches, the condemned is placed on a gurney, where twoinch-wide leather straps are used to lash down each leg at three sepa-


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rate points, each arm at two places, and, finally, stomach and chest. (A protective helmet is available should an inmate begin to beat his or her head against the table before being rendered insensate.) Catheter needles are then inserted into each forearm, the second as a backup should the first become clogged, and intravenous tubes are attached to these needles. It is through one of these two pathways that a sequence of three drugs is administered, at a signal from the superintendent, by a person who, hidden behind a door equipped with a one-way mirror, operates the syringe system. The first, 100 cubic centimeters of sodium pentothal, renders the condemned unconscious; the second, 150 cubic centimeters of Pavulon, paralyzes respiratory muscles and so causes suffocation; and the third, 150 cubic centimeters of potassium chloride, causes cardiac arrest by inducing violent fibrillation of the heart. Barring complications, introduction of these three substances takes less than a minute; and, in two to four minutes following the final injection, the inmate is dead. Far more completely than any of its predecessors does lethal injection achieve the “utopia of judicial reticence,” which, according to Foucault (1979, 10), is required by the liberal state. Shortly after Texas, in 1982, became the first state to execute a death row inmate using this new method, officials in New Jersey commissioned Fred Leuchter, proprietor of Execution Equipment and Support, to fashion a device that would minimize human and maximize machine involvement in the lethal injection process and, in so doing, respond to qualms expressed by the state’s medical community about its possible complicity in acts of official killing. To accomplish that end, Leuchter replaced the manual pull knobs of older devices with automatic counterparts; and, in order to meet the statutory requirement that “the procedures and equipment . . . be designed to insure that the identity of the person actually inflicting the lethal substance is unknown even to the person himself” (New Jersey Code of Criminal Justice, Title 2C:49–3[b]), he installed a set of duplicate controls as well as a computer program that designates which of the two sets activates the flow of lethal chemicals, but then erases this “choice” from its memory immediately thereafter. The net result is a system that eliminates virtually all possibility of error while simultaneously perfecting the mechanisms that enable the dispersion and denial of responsibility for dealing death. That this remarkable achievement coheres with the legitimation imperatives of

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liberal law can be suggested by extrapolating to lethal injection what Foucault said of the guillotine: Through this means, the state takes life “almost without touching the body, just as prison deprives of liberty or a fine reduces wealth. It is intended to apply the law not so much to a real body capable of pain as to a juridical subject, the possessor, among other rights, of the right to exist. It had to have the abstraction of the law itself” (1979, 13). So conceived, it is at least arguable that this way of killing resolves one of the key dilemmas explored in several different guises in earlier chapters, that is, the troublesome role of the human body in contemporary capital punishment. The hangman’s noose, recall, is a metonymical object in the sense that its oval tacitly refers to the neck it is to circumscribe; and all too often, as we have seen, that act of encircling produces a corpse bearing telltale traces of the harm it has suffered. The lethal injection apparatus, like the noose, is a technological objectification of the human capacity to harm one another; but, unlike the noose, it is one whose structure does not gesture toward a specific body part that, in being hurt, is to serve as the proximate cause of death. Leaving no mark on the body’s surface, doing its work behind a wall of flesh that is as opaque as that surrounding any penitentiary, the needle consummates the privatization of capital punishment. Moreover, because the administration of sodium pentothal, assisted by multiple leather straps, prevents the body from expressing whatever pain it might feel, and because we are not conceptually well equipped to identify as violence injury that does not occasion visible suffering, the accomplishment of death via the injection of therapeutic drugs invites its construction in terms of the discourse of humanitarianism. The continued plausibility of that discourse requires precisely the sort of body generated by lethal injection, one that does not writhe uncontrollably, that does not emit unseemly noises, that does not jettison nasty fluids, whether blood, or semen, or urine. Were the body to do any of these things during execution, as is all too common when other methods are employed, it would invite this event’s construction in terms of the discourse of barbarism. If Charles Campbell posed a dilemma for the regime of capital punishment in America because the instrumentality of his death, a noose, appeared anachronistic, lethal injection solves that problem in virtue of the needle’s consistency with the legitimation requirements of a state bent on perfect rationalization of its means of violence. If West-


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ley Allan Dodd posed a dilemma for the regime of capital punishment in America because his corpse retained visible signs of the violence done to his person, lethal injection solves that problem by rendering the body of the executed an unblemished page that says nothing. If Allen Lee Davis posed a dilemma for the regime of capital punishment in America because the blood that pooled on his white shirt testified to the pain he may have endured, lethal injection solves that problem by insuring immediate loss of consciousness and so an inability to feel anything. Even the dilemma posed by Karla Faye Tucker, whose identity as a woman highlighted the violence of capital punishment, was less problematic than it otherwise would have been because her death by lethal injection tempered the horror that would have been engendered had she been hanged, gassed, shot, or electrocuted. If these cruder instrumentalities of violence appear too reminiscent of those employed by Campbell (a kitchen knife), Dodd (a hunting knife and a rope), Davis (a gun), and Tucker (a pickax), lethal injection is sufficiently unique to sustain the state’s categorical distinction between criminal homicides and executions mandated by law. Perhaps, in light of these considerations, we should now conclude that lethal injection does indeed resolve the principal dilemmas reviewed in the previous chapters. Or perhaps not. Perhaps, in the very act of overcoming certain predicaments, execution by this means simultaneously creates others. Perhaps, as I argue in this chapter, the very success of lethal injection is at one and the same time the cause of its failure. To sustain this claim, I begin by establishing a more comprehensive context than that provided by the proximate history of lethal injection and its adoption. That context has two dimensions. The first concerns the modern liberal state’s assumption of responsibility for the provision of popular welfare in addition to that of external as well as internal security; and the second concerns the rationalization and hence the medicalization of death in modern liberal regimes. Woven together, these conditions suggest certain contradictory imperatives confronting the late liberal state in America, contradictions that are encapsulated in the oxymoronic quest for a “humane execution.” To illustrate how these contradictions have surfaced within the judicial realm, I briefly review Heckler v. Chaney (470 U.S. 821 [1985]), which is one of the more telling death penalty cases to arise in the post-Gregg

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era. Finally, I indicate why I am persuaded that execution by lethal injection cannot successfully satisfy the late liberal state’s various imperatives and, in particular, its need to present itself as sovereign monopolist over the means of legitimate violence. From Sword to Sustenance In chapter 2, I suggested that reform of the conduct of hangings, between the late sixteenth and late nineteenth centuries, was one means by which the early modern and modern state in England dissociated itself from what in time comes to be known in liberal discourse as the private sphere, thereby consolidating its claim to stand as exclusive representative of the affairs of the nation as a whole. As such, the noose is one element of a larger package that includes, among other things, the creation of a common coinage, the securing of well-demarcated national borders, the institutionalization of a uniform system of taxation, and the replacement of amateur constables by professional police officers. Recall also that, in making this argument, I suggested that this state should be understood in modified Weberian terms. That is, while endorsing Weber’s representation of the state as an institutional complex seeking to secure and sustain its claim to a monopoly over the means of legitimate force, I also argued that, in order to avoid reification, this construction should be understood as a relational effect constituted by the combined working of various state-creating mechanisms, several of which I have cited here. Although I remain persuaded that this neo-Weberian account is helpful in making sense of the emerging liberal state during the period reviewed in chapter 2, I am also convinced by Nikolas Rose’s claim that the utility of its categories is limited by their historical specificity: As we enter the twenty-first century, many of the conventional ways of analysing politics and power seem obsolescent. They were forged in the period when the boundaries of the nation state seemed to set the natural frame for political systems, and when geo-politics seemed inevitably to be conducted in terms of alliances and conflicts amongst national states. They took their model of political power from an idea of the state formed in nineteenth-century philosophical and constitutional discourse. This


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imagined a centralized body within any nation, a collective actor with a monopoly of the legitimate use of force in a demarcated territory. This apparent monopoly of force was presumed to underpin the unique capacity of the state to make general and binding laws and rules across its territory. It also seemed to imply that all other legitimate authority was implicitly or explicitly authorized by the power of the state. (1999, 1) If these “ways of analysing politics and power” are no longer entirely adequate, for reasons I suggest later in this section, where might we go in order to remedy their incapacities? In chapter 2, I turned to Weber in order to counter Foucault’s animus toward the state, and hence to law, as worthwhile objects of theoretical inquiry. I now want to turn to Foucault in order to remedy the inability of Weberian categories to capture in a sufficiently nuanced way the problematics of governance in late liberal regimes, which, at least in the context of the United States, includes the problem that is capital punishment. In the final chapter of the introductory volume to The History of Sexuality (1980a), Foucault argues that prior to the seventeenth century the defining privilege of sovereignty within European absolutist monarchical regimes was the right to “decide life and death” (135). Deriving originally from the unrestricted authority of the head of the Roman family to dispose of the lives of children and slaves as he saw fit, the scope of this claim was gradually delimited via political struggles aimed at designating the circumstances in which it could legitimately be exercised: specifically, when it proved necessary to send subjects to war on behalf of the state’s preservation or when it proved necessary to punish those who transgressed against the sovereign’s authority. The right to decide life and death, so construed, was “dissymmetrical” in the following sense: The sovereign exercised his right of life only by exercising his right to kill, or by refraining from killing; he evidenced his power over life only through the death he was capable of requiring. The right which was formulated as the “power of life and death” was in reality the right to take life or let live. Its symbol, after all, was the sword. Perhaps this juridical form must be referred to a historical type of society in which power was exercised mainly as a means of

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From Noose to Needle deduction (prélèvement), a subtraction mechanism, a right to appropriate a portion of the wealth, a tax of products, goods and services, labor and blood, levied on the subjects. Power in this instance was essentially a right of seizure: of things, time, bodies, and ultimately life itself; it culminated in the privilege to seize hold of life in order to suppress it. (136)

Within absolutist regimes, on this understanding, the biological existence of human beings was regarded as an “inaccessible substrate” (142) that became an object of political concern only when the sovereign found it necessary to jeopardize or destroy it or, alternatively, to confiscate some measure of the goods produced in order to sustain it. Under most other circumstances, the body and its imperatives, as well as their “natural” home, the household, were deemed beyond the scope of premeditated political intervention. In early modern Europe, this conception of political rule began to be displaced (but not eliminated), as the concerns of the oikos became those of the national household (the economy), and as management of the economy emerged as a target of deliberate political policy. Unlike the politics of “deduction,” which concerned subjects for whom the ultimate expression of sovereignty was death, this new sort of political rule was one that was “bent on generating forces, making them grow, and ordering them, rather than one dedicated to impeding them, making them submit, or destroying them” (Foucault 1980a, 136). In the sixteenth and seventeenth centuries, however, this project was constrained by the relative absence of effective agencies of political administration as well as by retention of the model of the patriarchal household in thinking about the relationship between monarchical power and the economy. Only around the middle of the eighteenth century, Foucault contends, as the concept of population came to supplant the metaphor of the household, did the achievement of significant political intervention in economic affairs, predicated primarily on the burgeoning science of statistics, become a realizable goal: The perspective of population, the reality accorded to specific phenomena of population, render possible the final elimination of the model of the family and the recentring of the notion of economy. Whereas statistics had previously worked within the administra-


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tive frame and thus in terms of the functioning of sovereignty, it now gradually reveals that population has its own regularities, its own rate of deaths and diseases, its cycles of scarcity, etc.; statistics shows also that the domain of population involves a range of intrinsic, aggregate effects, phenomena that are irreducible to those of the family, such as epidemics, endemic levels of mortality, ascending spirals of labour and wealth; lastly it shows that, through its shifts, customs, activities, etc., population has specific economic effects: statistics, by making it possible to quantify these specific phenomena of population, also shows that this specificity is irreducible to the dimension of the family. (Foucault 1991a, 99) The manifestations of rule directed specifically toward a nation’s population, according to Foucault, were twofold. The first and earlier of the two is what he, in The History of Sexuality calls “an anatomo-politics of the human body” (1980a, 139), which appears to be roughly congruent with what he, in Discipline and Punish, calls “disciplinary power” (1979, 170). Largely but not entirely explicable in terms of capitalism’s need for a compliant labor force, anatomo-political power is “centered on the body as a machine: its disciplining, the optimization of its capabilities, the extortion of its forces, the parallel increase of its usefulness and its docility, its integration into systems of efficient and economic controls” (Foucault 1980a, 139). The institutional loci of such power include, but are not limited to, public schools, army barracks, factories, and penitentiaries; and its epistemic conditions include, but are not limited to, competitive examinations, military training manuals, time and motion studies, and the science of criminology. The second manifestation of this new form of rule, which Foucault in The History of Sexuality calls “a bio-politics of the population,” focuses not on the body as machine, but “on the species body, the body imbued with the mechanics of life and serving as the basis of the biological processes: propagation, births and mortality, the level of health, life expectancy and longevity, with all the conditions that can cause these to vary” (1980a, 139). Its mundane techniques, sometimes originating in the state, but never confined to it, include population control efforts, public sanitation strategies, vaccination programs, and the regulation of working conditions (which, of course, may be at odds with the productivity-maximizing strategies of anatomo-politics); and its

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epistemic conditions include, but are not limited to, census data and actuarial tables, analyses of migration and immigration patterns, disease-tracking studies, and unemployment statistics. In sum, whereas the absolutist regimes of early modern Europe sought, above all else, to secure the sovereign’s territorial grip through irregular but awesome displays of might, whether directed outward or inward, their modern liberal counterparts endeavored to govern their populations on a continuous rather than an exceptional basis, and that with the aim of maximizing the nation’s well-being, whether that be construed in terms of aggregate wealth or collective health. This analysis of the project of political rule in modern liberal states is productively complicated when Foucault, aiming to loosen the grip of categories that remain dictated by the model of sovereignty, rehabilitates and then reworks an archaic sense of the term government:2 The word must be allowed the very broad meaning which it had in the sixteenth century. “Government” did not refer only to political structures or the management of states; rather it designates the way in which the conduct of individuals or states might be directed: the government of children, of souls, of communities, of families, of the sick. It did not cover only the legitimately constituted forms of political or economic subjection, but also modes of action, more or less considered, which were designed to act upon the possibilities of action of other people. To govern, in this sense, is to structure the possible field of action of others. (1982, 221) By calling into question narrower constructions of this term, which confine its sense to deliberately organized and constitutionally authorized formal institutions, Foucault’s concept of “governmentality” subverts liberalism’s sharp dissociation of the official from the unofficial, the public from the private, state from society, each of which is crucial to the intelligibility of the Weberian account of the state qua formal monopolist over the means of legitimate violence. Because that account remains wedded to the view that the sovereign command, issued by the state in the form of law and backed by the threat of force, is political power’s privileged form, it cannot adequately capture the diverse ways biopolitical and anatomo-political modes of governance are deployed and dispersed throughout the body politic.


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To commend the theoretical perspective suggested, albeit more cryptically than completely, by Foucault’s later work is not to deny the importance of the state. Given the access of formally invested officials to substantial institutional resources as well as to a unique claim to authority, the state remains a key pivot point within the larger project of rule. But it is to say that what we call the “state” should be situated on the more comprehensive field of political relations indicated by the term governmentality. And it is to say that the aim of inquiry, following Rose, should be to explore the “spatially scattered points where the constitutional, fiscal, organizational and judicial powers of the state connect with endeavours to manage economic life, the health and habits of the population, the civility of the masses and so forth” (1999, 18).3 And, finally, consistent with my modified Weberianism, it is to say that we should ask how that state, although constituted by its situation on this larger field, sometimes comes to be discursively coded as monopolist over the means of legitimate violence and hence as an autonomous entity explicable in terms of liberalism’s disjunctions between official and unofficial, public and private, state and society. If, as the concept of governmentality recommends, we direct our attention to the proliferation of alliances between state and nonstate bearers of expertise and authority aimed at regulating the conduct of diverse populations in light of various conceptions of welfare, we should also inquire into the mechanisms that sustain and shape these linkages and, of particular interest here, the law. On the one hand, because Foucault sometimes seems unable to imagine law as anything other than a juridical prohibition backed by the threat of force, he occasionally seems to suggest that the emergence of a regime of governmentality precludes its very existence.4 On the other hand, and more productively, Foucault sometimes suggests that the question we should ask is not whether law remains a significant vehicle for the exercise of power, but rather how it becomes implicated in anatomo- and biopolitical modalities of power within a regime of governmentality. For example, the operation of certain technologies of anatomo-political power, such as the multiple but generally unseen devices that now measure productivity within the capitalist workplace, presupposes a cluster of legal enactments that guarantees private ownership of these instrumentalities, that specifies who does and does not have authorized access to the results generated by their use, and that regulates the

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conditions under which dismissals on the basis of these results can and cannot be challenged. Here, rather than disappearing, law helps to constitute the workings of anatomo-political power. By the same token, certain technologies of biopolitical power, such as the actuarial tables employed by insurance companies to determine their health plans, are afforded a shape they would not otherwise have by various statutory enactments, including those that subsidize prescription drugs for the elderly, that define what does and does not count as “medical” treatment, that mandate coverage for the uninsured, and so on. Here, to quote Foucault, the “judicial institution is increasingly incorporated into a continuum of apparatuses (medical, administrative, and so on) whose functions are for the most part regulatory” (1980a, 144). With this last claim, although he does not say so in so many words, Foucault effectively implies that just as we are well advised to situate the state on the broader field designated by the category of governmentality, so too are we well advised to locate law within the broader complex specified by the category of “regulation” (see Hunt and Wickham 1996). This perspective acknowledges that the workings of anatomo- and biopolitical power are never exhausted by the imperatives of law. But, at the same time, it recognizes that the progressive juridification of social life means that law is ever more bound up with the task of exercising control over or, alternatively, of exempting from control various domains. This is not to suggest that law is the predominant factor in coordinating formally extrapolitical domains, either internally or in relation to one another. Nor, however, is it to say that law is merely a fossilized remnant of a premodern past or, as Foucault occasionally appears to suggest, a simple ideological encoding of existing relations of power.5 None of these caricatures adequately grasps the way in which law, especially as it is informed by various sorts of nonlegal knowledge and expertise (e.g., the medical, the psychiatric, and the criminological), now assumes the character of a hybrid. As an uneven assemblage that cannot be reductively identified with any of its parts (e.g., statutes, administrative regulations, agents of enforcement, judicial opinions, courtrooms and penitentiaries, etc.), and as those parts become more deeply invested in the regulation of formally nonpolitical domains (e.g., banking transactions, medicine, domestic relations, product safety, restaurant sanitation, welfare entitlement), law is itself “governmentalized” (see Rose and Valverde 1998). What implications does Foucault’s analysis of the historical trans-


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formation of the liberal state and its law harbor for our understanding of the politics of capital punishment, especially when conducted by means of lethal injection?6 I will address this question directly in subsequent sections of this chapter. Here let me simply indicate that how we answer this question will turn, in large part, on how we think about the relationship between old and new. When Foucault is inclined to insist on a categorical opposition between the regime of sovereignty, on the one hand, and the regime of anatomo-/biopolitics, on the other, he appears to suggest that the latter has altogether supplanted the former, rendering the notion of sovereignty irrelevant to an understanding of contemporary politics. At other times, and again in a more productive vein, Foucault suggests that, however awkwardly, the orders of sovereignty, anatomo-, and biopolitics now coexist in a triangulated relationship on the field of governmentality.7 Were we to elaborate the terms of this geometrical metaphor, he continues, maybe we could even, albeit in a very global, rough and inexact fashion, reconstruct in this manner the great forms and economies of power in the West. First of all, the state of justice, born in the feudal type of territorial regime which corresponds to a society of laws—either customs or written laws—involving a whole reciprocal play of obligation and litigation; second, the administrative state, born in the territoriality of national boundaries in the fifteenth and sixteenth centuries and corresponding to a society of regulation and discipline; and finally a governmental state, essentially defined no longer in terms of its territoriality, of its surface area, but in terms of the mass of its population with its volume and density, and indeed with the territory over which it is distributed, although this figures here only as one among its component elements. (1991a, 104) Whatever its value in helping us get a conceptual handle on the competing imperatives and hence the internally fractured character of the late liberal state, the metaphor of triangulation is not unproblematic (as I suspect Foucault would be the first to concede). For example, by assigning each of these “economies of power” to a distinct side of this triangle, this metaphor directs attention away from the way each is now at least partly constitutive of the others. While the dilemma posed by capital punishment via lethal injection might be understood as a

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function of a relatively straightforward contradiction between the claims of sovereignty (death) and those of biopolitics (life), it is still better understood when we ask how each of these elements (leaving aside the economy of anatomo-politics) is transformed when situated within a regime of governmentality. In the next section, accordingly, I ask about the rationalization of death within that regime, which involves a repudiation of certain premodern understandings of the relationship between life and its end, and it is in terms of this more general context that I will then locate my consideration of state-sponsored killing by means of lethal injection. Rationalizing Death In his history of attitudes toward death in the West, Philippe Ariès (1974) suggests that in premodern orders dying was regarded first and foremost as a matter of fate. As such, it might be lamented because of its inexorability, or perhaps welcomed as a necessary condition of entry into the hereafter; but never was it considered something that might be subject to deliberate intervention in an effort to cheat or, still better, defeat the grim reaper. This posture of resignation, Ariès argues, was reinforced by death’s profound ordinariness, by its standing as an event, which, although cruel in its unpredictability, was etched into the seams of everyday existence. However, by the end of the eighteenth century, if not before, for many, mortality had become not a given, but a scandal. Mocking the Enlightenment fantasy of humanity’s capacity to subject the world and its events to rational mastery, death comes to stand as a vexing reminder of that which resists and, indeed, eludes the project of perfect control and so the quest for unfettered autonomy. That status goes a long way toward explaining death’s rationalization, which is first and foremost a matter of its medicalization, which in turn goes a long way toward explaining its governmentalization. To begin to elaborate these connections, consider the following: When confronted by death today, rather than appeal to an undifferentiated category of fate or to the inescapable fact of mortality, more typically we ask about its specific cause or causes. Furthermore, because we believe that at least in principle all causes can be determined through scientific inquiry, and because we believe that at least in principle all causes, once known, are subject to technical intervention, we


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ever more come to believe that at least in principle all causes of death can be forestalled, if not reversed. Death, in other words, is ever more understood by analogy to an ailment. Just as illness is taken to be a departure from the normal condition of health, so too is death taken to be a violation, an abortion that cuts short what otherwise should or might be life without end. On this modernist construction, the easy opposition between life and death is unsettled, as the latter becomes a brooding presence within the former, a threat that must be staved off through deployment of whatever means are currently available. As such, suggests Zygmunt Bauman, in a metaphor that is much to my liking: Death has been turned from a hangman into a prison guard. . . . Death does not come now at the end of life; it is there from the start, calling for constant surveillance and forbidding even a momentary relaxation of vigil. Death is watching (and is to be watched) when we work, eat, love, rest. Through its many deputies, death presides over life. Fighting death may stay meaningless, but fighting the causes of dying turns into the meaning of life. . . . Eschatology has been successfully dissolved into technology. (1992, 140–41) The tragic nature of this project becomes apparent, Bauman explains, when we consider its implications for our understanding of the human body. On the one hand, as a necessary if perhaps unfortunate condition of the consciousness that seeks to free itself from the constraint of all causality, the body is that which must be kept alive. On the other hand, and simultaneously, it is the source of the mortality that must in time foil that same emancipatory project: “A paradox indeed—and the seat of perhaps the deepest and most hopeless of ambivalences: in the struggle aimed at the survival of the body, the would-be survivors meet the selfsame body as the arch-enemy” (36). When the meaning of life is defined in terms of defeating death— in terms of identifying and, to the extent possible, outwitting its various causes—conduct quickly becomes implicated in a tangled web of rationalized controls. Bauman again: The language of survival is an instrumental language, meant to serve and guide instrumental action. It is a language of means and

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From Noose to Needle ends; of actions that derive their meaning from the ends they serve, and their reason from serving the ends well. This language can accommodate the phenomenon of death only the way it accommodates all other elements of instrumentalized life: as an object of practice, of an informed, targeted and focused effort. As a specific event, with a specific and avoidable cause: an event which enters the vision, the realm of the meaningful, only through the task of prompting or preventing it, of making it happen or not allowing it to happen. (1992, 130)

The fact of mortality thus becomes not a cause for resignation, but an endless spur to anxious action: “Keeping fit, taking exercise, ‘balancing the diet,’ eating fibres and not eating fat, avoiding smokers or fighting the pollution of drinking water are all feasible tasks, tasks that can be performed and that redefine the unmanageable problem (or, rather, non-problem) of death (which one can do nothing about) as a series of utterly manageable problems (which one can do something about; indeed, which one can do a lot about)” (130). So construed, the rationalization of death, which involves mapping it onto an epistemological space that is occupied by named objects and known events, as well as linking it to a network of techniques whose efficacy may be precisely assessed, ideally in quantitative terms, is principally a matter of its medicalization. To state the obvious, the contemporary hegemony of medicine and its categories in making sense of mortality, and hence of securing health in order to prolong life, entails enormous deference to the authority of physicians. To state what is not quite so obvious, as a result of the medical profession’s role in regulating the conditions under which death typically occurs, as well as specifying the criteria that distinguish the living from the dead, what was once a “natural” event ever more assumes the form of an “artificial” construction of its discursive practices. If premodern death was a public event, not simply in the sense that it was an everyday occurrence, whether caused by violence, accident, or the cumulative burdens of embodiment, but also in the sense that it was interpretable in terms of shared structures of ritualized meaning, typically religious in orientation, medicalized death within late liberal regimes is in certain respects a fundamentally private affair. That this is so, it is worth noting, testifies to the kernel of truth embedded in the


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Weberian representation of the modern state as an institutional complex that can credibly sustain its claim to monopolistic control over the means of legitimate violence. As those who are not afforded this luxury perhaps understand best, it is precisely because that state has now secured a high degree of internal pacification, and so reduced the amount of unregulated and unpunished extrastate violence, that those in positions of relative privilege can entertain the prospect of a peaceful death in private, whether taking place within a home, a hospital, a nursing home, or some other cloistered site deemed suitable for this event. In addition, and as Thomas Hobbes was perhaps the first to grasp, the secular discourse of survival is essentially a privatizing language, one that reduces the import of death to the termination of a discrete individual’s biological existence and so renders it ever more difficult to interpret in communally meaningful ways. Given this construction, it is no surprise that wholesale privatization, the spatial and psychological sequestering of the dying and dead, is now our primary response to this embarrassing reminder of the limits of instrumental control; and, if that is so, then perhaps the removal of capital punishment behind penitentiary walls is well understood as but one more sign of our acute anxiety in the face of death. On the basis of considerations of this sort, Bauman concludes: “Death is now that thoroughly private ending of that thoroughly private affair called life” (1992, 130). Foucault comes to much the same conclusion when he suggests that “death is power’s limit, the moment that escapes it; death becomes the most secret aspect of existence, the most ‘private’” (1980a, 138). But this representation, as Foucault should have been the first to recognize, is in large measure a romantic illusion. The representation of death as an essentially private phenomenon obscures the way it, in response to the imperatives of rationalization, has become altogether caught up within the regime of governmentality. That category invites us to ask how medical authorities, practices, professional associations, and codes of conduct have been joined to state authorities, programs, administrative regulations, and formal statutes in the constitution of what Foucault aptly designated the “juridico-medical complex” (1996, 197). That complex, to cite but a few examples, includes the finely reticulated relationship between law and medicine in certifying the fact of death, in dictating the form and content of living wills, in regulating the operation of morgues, in dictating

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the allocation of scarce organs for transplant purposes, in analyzing DNA evidence during homicide trials, in governing the conduct of fetal tissue research, in determining when life support may or may not be withdrawn, in disposing of embryos after sperm or egg donors have died, and so forth and so on. The precise shape assumed by the juridico-medical complex at any given moment in time is never entirely settled, and so the potential for disruption of the politics of death is never altogether absent. To illustrate with an example that is of indirect but real relevance to the issue of capital punishment, especially when conducted by means of lethal injection, consider one of the more controversial contemporary manifestations of death’s rationalization: physician-assisted (or, still more controversially, physician-administered) suicide.8 Like execution by lethal injection, physician-assisted suicide is located within what Michael Davis calls “the shadow country of medicine” (1995, 44). To the extent that it implicates the art of healing in the art of killing, physician-assisted suicide troubles the distinction between private doctor and public executioner, and so threatens the medical profession’s collective self-definition. It is not surprising, therefore, that the Council on Ethical and Judicial Affairs of the American Medical Association, in response to this border threat, has condemned physician-assisted suicide on the grounds that it “is fundamentally incompatible with the physician’s role as healer” (E-2.211); or that the AMA’s House of Delegates has adopted a resolution opposing all bills aimed at legalizing this practice (H-270.965). What is less immediately apparent, though, is the way physician-assisted suicide undermines the liberal state’s Weberian self-representation and, more particularly, its construction of the appropriate relationship between political power and death. Should physicians be authorized to kill with impunity, albeit within a structure of statutory and administrative constraints, they will be afforded a prerogative that challenges the liberal state’s claim to monopolistic control over the authority to take life. To be sure, the exercise of that monopoly has always been qualified, for example, by the law’s acknowledgment of various affirmative defenses for what would otherwise be considered homicides (e.g., killing in self-defense). But it is one thing for the state to tolerate such killings in extraordinary circumstances on the grounds that its law enforcement officers cannot always fulfill their prescribed duties. It is quite another for the state to cede some portion of its monopoly to ostensibly private agents, first, by


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decriminalizing suicide and, second, by authorizing others to do what, till now, the executioner alone has been permitted. If the identity of that state is significantly bound up with its authority to define the terms upon which persons die, then legally authorized physician-assisted suicide may intimate that state’s democratic reconfiguration; or, alternatively, it may prove to be nothing more than another instance of neoconservative reprivatization, one that enhances the prerogatives of the medical profession while doing little to advance the cause of individual autonomy (see Tierney 1997). Either way, the politicization of this issue indicates the increasing untenability of an unvarnished Weberian representation of the liberal state as an institutional complex whose claim to sovereignty is given formal articulation via a code of laws backed by monopolistic control over the means of legitimate violence; and that, as the remaining sections of this chapter suggest, bears important implications for how we think about another manifestation of the unsettled juridico-medical complex in contemporary America: execution by lethal injection. Doctor/Executioner In his concurring opinion in Furman v. Georgia (408 U.S. 238, [1972]), Justice Brennan claimed that capital punishment is “different” because, in comparison to other forms, it is “unusual in its pain, in its finality, and in its enormity” (287–89). This contention presupposes a particular understanding of the death penalty and of the state that imposes it. Were Justice Brennan pressed to articulate that understanding, most likely he would say that capital punishment is the ultimate expression of the state’s singular authority to punish those who violate the law’s commands, and that it is precisely because it is exceptional in this sense that its application must be governed by a specially designed set of rigorous procedural safeguards. No doubt, there is some truth to this reading, one that effectively interprets the death penalty through reference to the side of Foucault’s triangle bearing the label sovereignty. But, precisely because this understanding is in fact one-sided, precisely because it presupposes the adequacy of a Weberian construction of the state that is now deeply problematic, should it alone be employed to make sense of execution by lethal injection, we will find ourselves illequipped to grasp its distinguishing features and dilemmas. Each of the two immediately preceding sections of this chapter

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identifies a dimension of the more comprehensive context within which I mean to situate lethal injection. In the first, with the help of Foucault’s triangle, I offered a more complex account of the imperatives of the late liberal state than that presupposed by Brennan; and, in the second, I offered an exploration of death’s rationalization in contemporary liberal regimes. Together, these conditions suggest that execution by this means might be understood not as a new means of asserting the state’s sovereign authority to take life, but rather as an instance of rationalized death on the more comprehensive field of political relations specified by the term governmentality. When thus considered, our attention is directed to the constellation of state and extrastate techniques, knowledges, regulations, authorities, and forms of conduct that comprise this practice; and that in turn directs our attention, as it did when we considered death more generally, to this method’s medicalization. But what exactly does it mean to say that execution by lethal injection is a medicalized procedure? This question is thornier than one might at first suspect. As I indicated in this chapter’s introduction, in 1888, a commission created by the governor of New York considered lethal injection as an alternative to hanging, but ultimately rejected this method in favor of electrocution. It did so on the grounds that the syringe “is so associated with the practice of medicine, and as a legitimate means of alleviating human suffering, that it is hardly deemed advisable to urge its application for the purposes of legal executions” (Report of the New York State Commission 1888, 75).9 Yet many of the statutes that presently prescribe this method explicitly state, in an effort to disavow what seemed so obvious to the members of the 1888 commission, that execution by lethal injection is not a medical procedure; and, in order to render this representation credible, most of these same statutes authorize pharmacists to dispense drugs to penitentiary officials absent the prescription that would be required were it in fact such a procedure.10 It might appear that this statutory legerdemain is refuted by this method’s deployment of chemicals customarily employed in conjunction with the arts of healing; its reliance on specific forms of medical knowledge (e.g., in extrapolating from the maximum safe dose to one that will kill with certainty but without inducing unwanted side-effects); the participation in some states of medically trained personnel in setting the intravenous lines through which these


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chemicals will be introduced (or, in some cases, in performing surgical incisions in order to expose a suitable vein); the adoption of instrumentalities conventionally associated with the practice of medicine (e.g., syringes, catheters, IV drip stands, and hospital gurneys); and, finally, the performance of lethal injections in settings that often are visually indistinguishable from those in which surgery is performed (e.g., in the infirmary of the Missouri state penitentiary). Yet, in opposition to this evidence, we should recall that the American Medical Association, again in an effort to police the borders that secure its collective self-definition, has sought to distance itself from a procedure that would appear to mandate its members’ involvement should it be deemed medical, specifically, by exhorting them to refrain from “participation” (although it does permit them to “certify” death, provided that its declaration is announced by another).11 To the extent that this exhortation produces its desired results, which is not always the case, perhaps we should conclude, following Michael Davis (1995), that execution by lethal injection is no more of a medical procedure than execution by firing squad is a military procedure (46). What these competing reflections indicate is that, as is the case with physician-assisted suicide, and as one would expect in an era of governmentality, execution by lethal injection is a profoundly ambiguous phenomenon. The characterization of what counts as a medical procedure is always at least partly up for grabs and, as such, always potentially a subject of political conflict as different constituencies seek to expand or constrict what falls within or without its borders. On the one hand, the state has an interest in medicalizing capital punishment as fully as possible since it thereby assumes the character of a depoliticized humanitarian (non)event, a painless matter of putting someone “to sleep.” However, when execution by this means takes on the trappings of a medical procedure, but is not in fact performed by physicians, as is typically the case today, the state opens itself to charges of incompetence when those not professionally trained are authorized to perform it.12 On the other hand, the medical profession has an obvious interest in resisting the conscription of its members for this purpose. However, when execution by this means takes on the trappings of a medical procedure, but is not in fact performed by physicians, the medical profession opens itself to the charge of violating its own code of ethics by depriving the condemned of the expertise that might in fact

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render this procedure “humane” (see Hsieh 1989 and Haines 1989). Considered together, these conundrums suggest that execution by lethal injection, again much like physician-assisted suicide, manifests the unsettled character of the border separating state and nonstate agencies, claims to authority, and modes of expertise. In this instance, that instability serves to confuse the conventional antinomy between healing and harming, which in turn destabilizes the distinction between the state’s biopolitical and punitive functions. How that destabilization opens up novel ways of challenging the legality of capital punishment by lethal injection, ways that are unlikely to be appreciated adequately so long as this method is understood as simply another means of validating the state’s monopoly over the means of legitimate violence, is the subject of the next section. “Safe and Effective” Executions A specifically legal manifestation of the late liberal state’s destabilization as a result of its governmentalization and, more specifically, emergence of the juridico-medical complex can be seen in one of the more eccentric death penalty cases to emerge in the post-Gregg era. Demonstrating the infinite ingenuity of the American legal profession, in the final weeks of 1980, attorneys acting on behalf of Larry Chaney and Doyle Skillern, death row inmates in Oklahoma and Texas, submitted a petition to the Food and Drug Administration. In it, Chaney and Skillern alleged that because use of the drugs required for an execution by lethal injection may “result in agonizingly slow and painful deaths that are far more barbaric than those caused by the more traditional means of execution” (quoted in New York Times, January 8, 1981, A13), especially when administered by untrained penitentiary personnel, the FDA was legally bound to prohibit their employment for this purpose.13 More specifically, they stated that employment of barbiturates and paralytics for the purpose of inflicting a death sentence violates the “new drug” as well as the “misbranding” provisions of the Food, Drug, and Cosmetics Act (FDCA) of 1982. To make the first of these two claims, they argued that these drugs qualify as new because lethal injection is not a use for which they had been deemed “safe and effective”; and, in support of this reading of the term new, they noted that the FDA had employed much the same logic in affirming its authority


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to regulate drugs administered to prison inmates in experimental clinical investigations as well as those employed by veterinarians to put infirm and diseased animals to death. To make the second of its two claims, the petitioners pointed out that the FDCA prohibits the introduction into interstate commerce of an approved drug for a purpose not designated in its labeling information; and, on the basis of this contention, they requested that the FDA require that warning labels be affixed to these drugs in order to safeguard against their misuse and, more precisely, to indicate that they are “not approved for use as a means of execution, are not considered safe and effective as a means of execution, and should not be used as a means of execution” (quoted in New York Times, January 8, 1981, A13). In closing, Cheney and Skillern petitioned the FDA, consistent with its mandate to take appropriate action whenever the use of a drug endangers public health, to “adopt a policy and procedure for the seizure and condemnation from prisons or state departments of correction of drugs which are destined or held for use as a means of execution,” and to seek criminal prosecution of prison officials and others in the chain of distribution, including manufacturers, wholesalers, retailers, and pharmacists, who “knowingly buy, possess or use drugs for the unapproved use of lethal injection” (Chaney v. Heckler, 718 F.2d. 1174 [1983], 1178). These claims were denied review by the Food and Drug Administration on the ground that its jurisdiction does not extend to regulation of the drugs in question when employed in conjunction with the performance of a lethal injection. In defending this reaffirmation of the boundary demarcating the state’s punitive from its biopolitical imperatives, and apparently without deliberate irony, the FDA claimed that employment of the drugs required for an execution by lethal injection falls within a recognized exception to the FDCA’s coverage, known as the “practice of medicine” exemption. Adopted to prevent governmental interference with the treatment of patients by physicians, as when an approved drug proves effective in treating a condition not specified in its original labeling information, the FDA claimed that the use of drugs by state officials to kill persons effectively falls within this same category. Moreover, the FDA contended, the use of drugs for the purpose of lethal injection does not pose a danger to public health, first, because the number of persons affected is limited to those convicted of capital crimes and sentenced to death; and, second, because no duly

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authorized statutory enactment that furthers a legitimate state purpose can, as a matter of law, pose such a danger to the public. In an effort to force the FDA to take action, and now joined by six additional inmates, in September 1981, Chaney and Skillern filed suit in U.S. District Court for the District of Columbia.14 One year later, that court granted summary judgment in favor of the FDA on the grounds that its decision not to undertake investigative or enforcement proceedings was not subject to judicial review. That ruling was vacated in October 1983 by a divided panel of the U.S. Court of Appeals, which held that the agency’s refusal to consider the petitioners’ claims was “arbitrary, capricious, and without authority of law”: “We do not understand,” wrote Judge J. Skelly Wright on behalf of a two-to-one majority, “how the Commissioner [of the FDA] can assert legal authority to regulate drugs used in both state-licensed clinical investigations and state-licensed veterinary practices and not assert, with equal confidence, authority to regulate drugs used in state-licensed capital punishment practices” (Chaney v. Heckler [1983], 1189). If the unapproved use of approved drugs in these other two contexts threatens public health, as the FDA had maintained in the past, it is irrational to conclude that the use of drugs to kill persons does not do the same. Additionally, Wright argued, the FDA’s refusal to act may implicate the constitutional rights of the condemned and, more specifically, their right to an execution that is not cruel. While it is no doubt true that the FDA is “refusing to exercise enforcement discretion because it does not wish to become embroiled in an issue so morally and constitutionally troubling as the death penalty” (Chaney v. Heckler [1983], 1191–92), such inaction is impermissible if it deprives the condemned of the FDA’s expert judgment regarding the safety and effectiveness of the drugs employed in lethal injection; and that is all the more so if the agency’s refusal has the effect of making it more difficult for those sentenced to death to sustain a direct challenge to this method on Eight Amendment grounds. For these reasons, the court remanded the case to the district court and directed it to require the FDA to fulfill its statutory responsibilities. In his dissenting opinion, Antonin Scalia argued that the FDA’s discretionary authority is sufficiently broad to warrant its refusal to initiate investigative and enforcement proceedings, and he criticized his peers on the bench for their conversion of “a law designed to protect consumers against drugs that are unsafe or ineffective for their repre-


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sented use into a law not only permitting but mandating federal supervision of the manner of state executions” (Chaney v. Heckler [1983], 1191). Leaving aside these considerations of federalism, Scalia went on, the majority’s solicitude for those sentenced to die by this method is misplaced: [T]he public health interest at issue is not widespread death or permanent disability, but (at most) a risk of temporary pain to a relatively small number of individuals (200, which the majority swells to 1,100 by including prisoners under sentence of death in states that have not adopted lethal injection statutes). Moreover, it is not a matter of pain versus no pain, but rather pain of one sort substituted for pain of another—and in all likelihood substitution of a lesser pain, since that is the principal purpose of the lethal injection statutes. (Chaney v. Heckler [1983], 1196–97) Two years later, in 1985, after eight executions by lethal injection had already been conducted, Scalia’s opinion prevailed when the United States Supreme Court, in a unanimous decision, reversed the ruling of the appeals court. Writing for the Court, Justice Rehnquist elected not to address the question of whether the drugs used in lethal injection are subject to FDA regulation, and he left equally unexplored the question of this method’s constitutionality. Instead, he predicated the Court’s decision exclusively on the unreviewability of the FDA’s refusal to initiate investigative or enforcement proceedings absent a clear indication of congressional intent to circumscribe its discretion as well as the provision of meaningful standards for defining the limits of that discretion. Heckler v. Chaney (470 U.S. 821 [1985]) has had considerable impact on subsequent cases dealing with judicial review of administrative agencies, but very little on capital punishment jurisprudence. Although insignificant in this regard, I have reviewed it here because it illustrates my contention that the dilemma of capital punishment within the late liberal state, especially when administered by lethal injection, cannot be understood adequately so long as this practice is regarded simply as an expression of that state’s sovereign power to exact the supreme sacrifice from its members. The conditions of this case’s possibility include the situation of that state on the contested field of governmentality, the emergence on this field of a juridico-medical complex, and the resulting

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confusion of the late liberal state’s punitive and welfare responsibilities. While this case’s perplexities were no doubt lost on Doyle Skillern, who was executed by lethal injection one month after this case was argued before the Supreme Court but two months preceding its decision, Heckler author clearly sensed that its terms induce a sort of jurisprudential astigmatism: “We granted certiorari to review the implausible result that the FDA is required to exercise its enforcement power to ensure that States only use drugs that are ‘safe and effective’ for human execution” (Heckler v. Chaney [1985], 827). The counterintuitive result to which Rehnquist alludes appears to censure a specific way of taking life because, in doing so, it may harm them; and that in turn is the premise of the contention that the administrative agency authorized to protect persons from dangerous drugs also be required to certify their capacity to kill reliably.15 What Chaney and Skillern sought to do was not so much to contest the ultimate manifestation of state power, but rather to hoist the state with its own petard by highlighting the contradiction between that power and its assumed obligation to cultivate the conditions of collective well-being. Were Foucault to read this case (or, rather, were it to be read by the Foucault who sometimes insists that the regime of anatomo-biopolitics has altogether displaced that of sovereignty), he might well contend that the collision that results is a function of the opposition between old and new, which in turn entails a representation of the death penalty, no matter how inflicted, as an atavistic remnant of a vanished era: As soon as power gave itself the function of administering life, its reason for being and the logic of its exercise—and not the awakening of humanitarian feelings—made it more and more difficult to apply the death penalty. How could power exercise it highest prerogatives by putting people to death, when its main role was to ensure, sustain, and multiply life, to put this life in order? For such a power, execution was at the same time a limit, a scandal, and a contradiction. Hence capital punishment could not be maintained except by invoking less the enormity of the crime itself than the monstrosity of the criminal, his incorrigibility, and the safeguard of society. (Foucault 1980a, 138)


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But, we should ask, is the construction of capital punishment as a relic, one that gives expression to a premodern conception of sovereignty, entirely adequate? Granted, the opposition between old and new may offer a partial account of why all European states have now effectively abolished capital punishment; and, granted, it may indicate in part why it is now necessary in the United States to demonize those sentenced to die. But, as my discussion of the juridico-medical complex suggests, and as Heckler illustrates, in a sense execution by lethal injection is a peculiarly modern phenomenon, one that turns on a conflation of the late liberal state’s claim to specify the conditions under which its members shall live and die. Foucault’s metaphor of the triangle, it is true, represents an improvement over this formulation insofar as it suggests the simultaneous but uneasy coincidence of past and present, and hence of diverse imperatives of state action. But, even so, Foucault never seeks to determine how the classical conception of sovereignty has itself been reconfigured in response to the advance of governmentalization and globalization, each of which has significantly diminished the late liberal state’s capacity to fulfill some of the fundamental imperatives conventionally ascribed to and demanded of the putative monopolist of the means of legitimate violence. Whether execution by lethal injection can counter the erosion of political authority that attends these twin developments is the question to be taken up in the final section of this chapter. The Paradoxes of Lethal Injection In my chapter on the place of pain in capital punishment, I suggested that the medicalization of capital punishment and, more specifically, our endorsement of a medicalized construction of embodied suffering immunize the state from challenges it might have to confront were we to adopt an expressly political reading of pain. Here, my aim is to suggest that, although the medicalization of capital punishment remedies certain problems, it simultaneously generates others. Recall that in my analysis of gender and capital punishment, I asked whether some kinds of executed bodies are better suited than others at accomplishing what Elaine Scarry (1985) calls “analogical verification,” that is, the process whereby the palpable materiality of the human body is called upon to

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confirm the reality of the intangible; and recall that I concluded that women’s bodies, in virtue of the way they are conventionally coded, especially when white and heterosexual, are problematically implicated in the project of reconstituting the authority of the liberal state. I now want to suggest that specific methods of execution are more or less well suited for this same purpose, and that lethal injection, regardless of the distinguishing features of the condemned body, is not. This dilemma, I conclude, indicates what may well be an insurmountable conflict between the technological reforms that effectively eliminate the corporeal character of punishment in the name of humanitarianism and the state’s need for punishments that can affirm the cause of sovereignty only by visibly harming and hurting the human body. The classical doctrine of sovereignty represented a hyperbolic articulation of the bid of absolutist monarchs to secure their territorial integrity, and hence their ability to protect against external conquest and internal disorder, by expropriating and then securing hegemonic control over the means of legitimate violence. Within liberal regimes, the imperatives of sovereignty, as we have seen, were subsequently joined by and to those of anatomo- and biopolitics. How these imperatives came to inform and reconfigure one another can be schematically illustrated by offering a few broad generalizations about reforms in the domain of criminal law during the late nineteenth and early twentieth centuries on both sides of the Atlantic. It is then that the claims of retribution and deterrence, predicated on the assumption that punishment is exclusively a legal matter imposed in the name of the sovereign state upon formally equal rational subjects who have elected to violate the terms of the social contract, were partly supplanted by the claims of rehabilitation. Those claims, by way of contrast, were predicated on the assumption that the goal of intervention is reform of the character of individual subjects, via deployment of various forms of nonlegal expertise, by various formally private bearers of professional knowledge, and within a host of disciplinary institutional sites, including the prison, but also the clinic, the reformatory, the halfway house, and so forth. With proliferation of such sites and extension of their logic into the body politic, the reform of offenders came to be linked to more generalized forms of intervention aimed not just at criminals but at entire subpopulations, oriented toward the goals of prevention and normalization, and initiated either by the state


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or by quasi-private agencies, such as churches, charities, self-help groups, and reform organizations. Considered collectively, in time, these developments bore fruit in what David Garland calls the “penalwelfare complex” (1985, 5),16 which, by its very name, suggests a conflation of the sides of Foucault’s triangle as well as an elaboration of the role of the state in the direction indicated by the concept of governmentality. An essential aspect of that elaboration, the converse of the spread of anatomo- and biopolitical technologies throughout the body politic, is the insinuation of medical and psychological knowledge within the domain of criminal punishment; and that in turn helps to fashion the context within which adoption of lethal injection as a method of execution eventually becomes viable and the challenge of Skillern and Chaney becomes conceivable. Emergence of the penal-welfare complex, while certainly signifying the generation and diffusion of a new modality of power, does not spell the end of the state’s classical functions. No matter how much transformed by the imperatives of anatomo- and biopolitics, the traditional claims of sovereignty, best revealed in the promise to provide security against enemies without and criminals within, remain central to the late liberal state’s identity. Yet, as I intimated in chapter 6, that state now finds it ever more difficult to make good on its affirmation of sovereign authority, and that for at least two reasons. First, as one would expect given its governmentalization, the state has grown ever more decentered (which is not to say decentralized). Its capacity for autonomous action is effectively compromised by the relations it now sustains with various formally nonpolitical sources of authority and expertise (the medical profession, for example), and its efforts to activate the governmental powers of these “private” agencies through means other than that of legal command. Caught within this thicket, the liberal state is not a Hobbesian sovereign dressed in the kinder and gentler garb woven by Locke, but rather a source of managerial control that operates, in large part, by creating incentive structures (e.g., tax breaks and subsidies) that aim to induce rather than compel desired forms of conduct. Second, the state’s capacity to act like a proper sovereign is compromised by its situation within a network of global interconnection that mocks its claim to control events even within its own borders. Late modernity, to quote William Connolly again,

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From Noose to Needle is a time when the worldwide web of systemic interdependencies has become more tightly drawn, while no political entity or alliance can attain the level of efficiency needed to master this system and its effects. . . . Nonstate terrorism, the internationalization of capital, the greenhouse effect, acid rain, drug traffic, illegal aliens, the global character of strategic planning, extensive resource dependencies across state boundaries, and the accelerated pace of disease transmission across continents can serve as some of the signs of this contraction of space and time in the latemodern world. Together they signify a widening gap between the power of the most powerful states and the power they would require to be self-governing and self-determining. (1991, 24)

This gap is troublesome, Connolly explains, not merely because it hobbles the late liberal state in its relations with foreign powers, but also, and perhaps more so, because it undermines the state’s self-representation as an agency that is capable of efficaciously translating the will of the democratic electorate into coherent public policy. As such, the authority of the late liberal state is unsettled at precisely the moment when erosion of its sovereign capacity renders it least able to afford a legitimacy crisis. What, therefore, is to be done? There are many possible responses to this dilemma. In principle, the official representatives of such a state could simply confess to its diminished ability to secure sovereignty’s traditional functions, but the political consequences of doing so would likely be disastrous. It is far more probable that a state facing this predicament will vacillate between, on the one hand, policy initiatives aimed at acknowledging its reality (e.g., by parceling out some measure of its responsibility for internal security to neighborhood block watch committees); and, on the other hand, emphatic reaffirmations of the myth of sovereignty (see Garland 1996). One means of attempting the latter is to adopt a punitive law-and-order stance that reasserts the state’s capacity to govern by force of command and, as an extension of that strategy, to engage in the time-honored display of sovereign might that is imposition and execution of the death sentence.17 On this reading, to recall an argument I advanced in chapter 3, executions are to be construed not as manifestations of an already-realized sovereign authority, understood in familiar Weberian terms. Instead, capital punishment is to be construed as a


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means by which the late liberal state seeks to manufacture that authority or, better still, as one among many means by which that state seeks to (mis)represent itself as the uncaused cause of the conditions constitutive of its own existence. Punishment of any sort, suggests David Garland, “is a dramatic, performative representation of the way things officially are and ought to be, whatever else the deviant would make of them. And by means of its example, its repetition, and its practical enactments, punishment helps construct a social regime in which these forms of authority, personhood, and community are in fact the established ones” (1990, 265). The question to be asked, then, is whether execution by lethal injection, considered as a performative enactment, can effectively participate in constituting a state that can present itself credibly as a sovereign agent capable of preserving the peace within and defending against aggression without. If it cannot, then capital punishment may be in danger of slipping into obsolescence not so much because it is anachronistic, not so much because it contradicts the biopolitical imperatives of the late liberal state, but because in time it may become useless to the very state that now imposes and inflicts it. To establish a context for this contention, let me quickly recapitulate an argument advanced by Mona Lynch in “The Disposal of Inmate #85271: Notes on a Routine Execution” (2000). Lynch begins by asking how we might think about capital punishment were we to adopt the theoretical perspective that has come to be known as the “new penology” (see Feeley and Simon 1992; Simon and Feeley 1995). This perspective, which implicitly suggests that neither Foucault’s triangle, nor Garland’s penal-welfare complex, is entirely adequate as an articulation of the distinguishing features of the late liberal state, affirms that neither preventative nor rehabilitative models suffice to explain many of the more significant recent reforms in criminal intervention. The overriding goal of these reforms, according to this model, is neither the elimination of crime, nor reform of the criminal, but rather efficient and cost-effective management of those classified as dangerous, or potentially so, based on aggregate statistical predictions regarding the likelihood of illegal behavior on the part of diverse subpopulations. On this account, writes Lynch, “[T]hose subject to penal intervention are mere punishable units to be classified and distributed in penal categories based upon a set of actuarial criteria, and their internal states, including motivations, drives, capacity for redemption, goodness or evilness, are

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irrelevant to the process” (2000, 7). Incarceration is one means of effecting this distribution, capital punishment is another, and both are well understood on the metaphor of “waste management.” The death penalty, therefore, and pace Justice Brennan, is not “different.” Rather, it is merely the consummate disposal strategy; and, like all other manifestations of the new penology, its ends are to be accomplished through routinization of the execution process and elimination of all affective elements that might otherwise interfere with this rationalized task. Central to that endeavor, Lynch argues, is adoption of lethal injection, which, to recall the quotation with which this chapter began, renders execution a virtual nonevent. Specifically, as she testifies on the basis of her own experience as witness, during an execution by this means, there is no clear indication as to when the act of killing begins, the body evinces no signs that it is being killed, and its status as dead can be known not by any discernible change in the character of embodiment, but only via an act of official declaration. This “event” is rendered still more mundane, Lynch notes, by its incorporation within a detailed set of normalized operating procedures (e.g., by shifting the time of executions from midnight to customary business hours). Adherence to this bureaucratized protocol, complementing the anesthetizing effects produced by this sterile technology, maximizes the efficiency of the execution team; reduces the public uproar, the irrelevant noise, that is so often occasioned by the use of other methods; and, so, by reducing the political controversy over capital punishment, expedites the pace of executions, thereby making it easier to meet targeted system goals, including reduction of the backlog now clogging death row. In her closing remarks, Lynch suggests that “the reshaping of the death penalty into a sanitized and routinized disposal process . . . may actually hasten its obsolescence” (2000, 25). To defend this nonobvious conclusion, she contends that those who are persuaded that lethal injection renders state killing more or less unproblematic fail to appreciate “the affective underside of punishing,” which is most often expressed in the “populist desire for the execution to mean something more than a simple elimination process, even if that desire is rooted in feelings of blood lust and vengeance” (25–26). As evidence of this desire, she cites execution night parties thrown by college students in Huntsville, Texas, repeated affirmations of the Florida electorate in favor of the


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electric chair’s retention, and widespread circulation via the Internet of images of a bloodied Allen Lee Davis following his botched electrocution. Equally well, she might have cited the mother of a murder victim, who, after learning about the particulars of execution by lethal injection, asked: “Do they feel anything? Do they hurt? Is there any pain? Very humane compared to what they’ve done to our children” (quoted in Sarat 1991a, 53). Or, finally, she might have cited Justice Antonin Scalia, who, in Callins v. Collins (114 S. Ct. 1128 [1994]), contended that the “quiet death” caused by lethal injection is “enviable” and even “desirable” (1142) when compared to that suffered by most homicide victims. What all of these examples indicate is that execution by lethal injection exposes a tension between our desire to realize the claims of retribution by killing those who kill and a method that, because it appears to do no harm other than killing, cannot satisfy the intuitive sense of equivalence that informs this conception of justice. While this tension might appear to augur a return to more graphically violent methods of execution, Lynch thinks that outcome unlikely since such a move would contradict our discourse of humanitarianism and our rationalized commitment to technological mastery over death. Instead, and precisely because the transformation of executions into so many nonevents strips them of the ability to communicate or confirm any meanings other than those associated with waste disposal, she speculates that capital punishment may in time come to appear literally pointless: “If and when the death penalty loses its potency as a shorthand answer to serious social woes (and it will some day), its superfluousness as penal policy and practice will likely be revealed” (2000, 27). Should that day come, proponents of the death penalty, and, more particularly, those who have promoted lethal injection because they believe it greases the state’s machinery of death, will have finally outwitted themselves. The problem with lethal injection, however, is deeper than this analysis in terms of the frustrated claims of vengeance suggests. The more profound import of Lynch’s speculation can be teased out by asking whether execution by lethal injection can successfully participate in constituting the sort of state that can credibly present itself as an institutional complex whose sovereign pretensions have not in fact been seriously eroded by the twin forces of governmentalization and globalization. To see why it may not be able to do so, recall one last time the

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torture and execution of Damiens, as described in the opening pages of Foucault’s Discipline and Punish (1979). The visible dismemberment of Damiens’s body is the means by which the impaired authority of the sovereign, whose body mimetically represents that of the body politic, is reconstituted. Maximization of the pain suffered by Damiens is a spectacular manifestation of the absolute gulf separating subject from sovereign and, at the same time, a theatrical ritual through which the will of that sovereign is retethered to the divine order of things and so to the ultimate authority of God. Essential to this enterprise’s success— its substantiation of the claims of sovereign authority—is palpable demonstration of the utter vulnerability of the human body and, more specifically, its reducibility to the status of a thing consumed by pain that is as limitless as is the claim to sovereignty itself. Now, by way of comparison, consider the lethal injection of Charlie Brooks, the first person in the United States to be dispatched by this means. Shortly before the execution of Brooks, the medical director of the Texas Department of Corrections justified his participation by arguing that just as a physician routinely cuts living flesh out of persons for therapeutic purposes, so too was he professionally authorized to help society cure itself of crime by assisting in the killing of Brooks (Schwarzschild 1982, 15). For my purposes, what is important about this statement is its reliance on an organic metaphor that is more germane to the world of Damiens than to ours. That this claim sounds both foreign and ethically callous to our ears testifies to the demise of the cosmological and political presuppositions that informed the representation of Damiens not as an individual per se, but as an integral member (albeit one that is disposable) of a body politic that is itself understood on the model of a living organism. That understanding cuts against our depoliticized conception of medicine by representing the executioner as one who heals the body politic by amputating its diseased limbs; and that in turn is very much at odds with a secularized and individualistic culture committed to a conception of justice that may justify capital punishment through reference to the claims of deterrence or retribution, but is unlikely to represent satisfaction of either of those claims as a means of restoring a wounded nation to wholeness by rectifying the cosmic disorder engendered by criminality. But if the body of Charlie Brooks is not that of Damiens, whose is it? What does the executed body become when located in the context


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defined by death’s rationalization and on the field defined by the state’s governmentalization? In his catalog of different representations of the punishable body, Alan Hyde argues that lethal injection originally emerged in response to worries about the sentimental body, that democratic entity which, precisely because it is fundamentally kin to all other bodies, is defined by its capacity to experience pain and, by displaying its anguish, to excite sympathy. But, he goes on, today the executioner’s needle is administered “neither to an eighteenth-century body symbolically representing the social order [Damiens], nor a nineteenth-century sentimental body, but rather to our distinctive latetwentieth-century artifact, the absent body” (1997, 196). Hyde’s point can be clarified by recalling Foucault’s claim that, when the law of the liberal state touches the body, “it is in order to deprive the individual of a liberty that is regarded both as a right and as a property. . . . Physical pain, the pain of the body itself, is no longer the constituent element of the penalty” (1979, 11). The lethally injected body is the body that, so far as is possible given the irreducible materiality of the human frame, corresponds to the imperatives of liberal law and, more particularly, the imperative that punishment take shape as the deprivation of an abstract right and, in this case, the right to life. Because the body, on this construction, cannot itself be the target of punishment, because it is only a means to the achievement of an end that is not itself embodied, the palpable reality of the body must be elided; and that, of course, is exactly what execution by lethal injection accomplishes by causing a death that appears to involve no killing. But can the nonevent that is a lethal injection, performed upon an absent body, in accordance with the medicalized imperatives of biopolitics, accomplish the work that the late liberal state requires of it? As the example of Damiens indicates, an execution that retains traces of torture is a viable means of achieving what Scarry (1985) calls “analogical verification,” that is, the process through which “pain is relied on to project power, mortality to project immortality, vulnerability to project impregnability” (126). As in human sacrifice, practical demonstration of the state’s right to determine who shall live and who shall die seeks to appropriate the brute facticity of the executed body in order to affirm its claim to ultimate authority. But can that end be accomplished via a form of punishment that inflicts no pain, that eliminates dying from death, that expunges the very traces of material embodiment that

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would appear to be required if the abstract is to be made concretely real? Precisely because it remains unmarked, precisely because it bears no signs of the violence done to it, the lethally injected corpse resists its incorporation within tales of political signification regarding sovereign authority far more effectively than does the body produced by hanging or electrocution. In one sense, of course, the perfection of this nonevent is precisely what the state requires, for it entails a method of killing that is categorically distinct from that employed in most conventional homicides. But, in another sense, by rendering execution a nonevent, the state renders it, to use Lynch’s term, pointless, and a pointless event is one from which it can derive little or no political advantage. Or, perhaps more cautiously, when executions are thus conducted, the state may prove able to communicate, construct, and validate only those meanings that are suggested by the paradigm of waste disposal. It is not clear, however, that these meanings are the sort required by the late liberal state in order to rejuvenate the claims of a classical conception of sovereignty, and hence to authorize its own unique claim “to decide life and death” (Foucault 1980a, 135). Inviting the construction of killing as a humanitarian event, the biopolitical reconfiguration of this ultimate expression of sovereign authority undercuts a central political imperative of capital punishment; and, in that sense, it is the very perfection of execution by lethal injection that renders it a failure. The paradox deepens when we realize that the medicalization of capital punishment is itself an expression of the state’s governmentalization, which I have identified as one of the primary causes of the very erosion of sovereign authority that, in principle, is to be remedied by imposition and infliction of the death sentence. And there is one final self-defeating twist to this irony. If the argument advanced here is correct, then it is only when lethal injections are botched,18 and only because such mishaps make palpably real the embodiment of the person being executed, that the late liberal state can secure whatever validation capital punishment is capable of providing. But, of course, whatever that state gains in terms of affirmation of its claim to sovereign authority via a botched injection is simultaneously lost as a result of its failure to live up to the biopolitical imperatives that secure expression in our impossible quest for a “humane execution.”

Notes

Chapter 2 1. For analyses of this argument, see Shugrue 1995; Bell 1996; Flynn 1997; Crocker 1998; and Feldman 1999. 2. For examples of such rejections, see People v. Frye, 18 Cal. 4th 894 (1998), 1030–31; People v. Massie, 19 Cal. 4th 550 (1998), 574; Ex Parte Bush, 695 So. 2d 138 (1997), 140; State v. Schackart, 190 Ariz. 238 (1997), 259; Bell v. State, 938 So.W. 2d 35 (1996), 53; State v. Smith, 280 Mont. 158 (1996), 183–84; White v. Johnson, 79 F. 3d 432 (1996), 439–40; and Stafford v. Ward, 59 F. 3d. 1025 (1995), 1028. It is worth noting that many petitioners raising “Lackey claims” have failed not because courts have addressed the merits of this claim, but because they have encountered a sort of catch-22 procedural hurdle: On the one hand, if a prisoner waits until he or she has been on death row long enough to raise this claim credibly, it may be barred on the grounds that, in order to qualify for relief through habeas corpus, it had to be raised at the earliest possible opportunity. On the other hand, should this issue be raised at the earliest possible opportunity on direct appeal, it is unlikely that the prisoner will have been confined for a period of time long enough to render this contention credible. 3. For an equally alarmist criticism of long delays between sentencing and execution in capital punishment cases, see Justice Rehnquist’s dissenting opinion in Coleman v. Balkcom, 451 U.S. 949 (1981): “When society promises to punish by death certain criminal conduct, and then the courts fail to do so, the courts not only lessen the deterrent effect of the threat of capital punishment, they undermine the integrity of the entire criminal justice system. . . . When our systems of administering criminal justice cannot provide security to our people in the streets or in their homes, we are rapidly approaching the state of savagery” (959, 962), a state that, on Rehnquist’s account, cannot help but encourage various forms of vigilante justice. 4. The relevant statute of Washington State (RCW 10.95.185), from which my primary example in this chapter is drawn, authorizes a superior court judge to seek permission to witness an execution for which he or she signed the death warrant. However, that judge is not required to do so, and the superintendent of the facility in which the execution takes place is not required to approve that request, should it be submitted.

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5. Dubber’s tentative explanation for the gradual dissociation of judges from the actual infliction of punishment complements the argument I offer in chapter 3 on the relationship between hanging and the centralization of state power in England. He writes: “These attempts by high public officials to distance themselves from public executions had nothing to do with the much-discussed appearance of moral sensibilities in the eighteenth century that rendered unbearable an act previously thought perfectly justified. Instead, we may speculate, it constituted an effort by those of the highest official status to distance themselves from public acts of punishment once it was no longer necessary openly and constantly to assert their monopoly over the infliction of violence. Once the central authority had completed and secured the centralization of legitimate violence, its representatives may have come to believe that the symbolic advantages of participating in public acts of violence were outweighed by its disadvantages. The execution, after all, was a public act carried out by a person, who through his association with that very act became infamous, that is, relegated to the lowest social status available” (1996, 550). Now that executioners in the United States have by and large assumed the status of anonymous technicians, I would suggest that the infamy once associated with them has migrated to various technologies of execution and, specifically, to all those that appear less scientifically refined than does lethal injection. 6. On this point, see Cover 1986: “Because in capital punishment the action or deed is extreme and irrevocable, there is pressure placed on the word—the interpretation that establishes the legal justification for the act. At the same time, the fact that capital punishment constitutes the most plain, the most deliberate, and the most thoughtful manifestation of legal interpretation as violence makes the imposition of the sentence an especially powerful test of the faith and commitment of the interpreters. Not even the facade of civility, where it exists, can obscure the violence of a death sentence” (1622–23). 7. The passage from which this phrase is taken is worth quoting in its entirety: “The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.” Incidentally, as I read his dissenting opinion in Callins v. Collins (114 S. Ct. 1128 [1994]), it is when Justice Blackmun becomes persuaded that the system of capital punishment cannot be administered in a way that clearly preserves the distinction between law’s violence and the violence it punishes that he concludes that the system itself must now be abandoned. In his concurring opinion in the same case, Justice Scalia seeks to distinguish the law’s violence from its extralegal counterpart by insisting that the former is less brutal than the latter. Leaving aside the question of whether or not this claim is true, it seems clear that this is quite insufficient to insure the law’s legitimacy.


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8. The authority of judges to issue stays complicates in interesting ways the effort of judges to distance themselves from the actual violence of an execution. On the one hand, as Robert Cover (1986) notes, it is the possibility of a stay that transforms killing into an act of constitutional violence by linking the deeds of the executioner to the rationality of the judge. On the other hand, the denial or the lifting of a stay of execution implicates a judge in the act of killing in a way that is arguably inadvisable from the perspective of law’s legitimacy. For a specific example of this difficulty, consider the Supreme Court’s 1992 order prohibiting all federal courts from issuing additional stays in the case of Robert Alton Harris (New York Times, April 22, 1992, A1). That order evoked widespread outrage on the grounds that the Court’s desire get on with the killing of Harris took precedence over its commitment to the rule of law. For a helpful analysis of this case, see Caminker and Chemerinsky 1992. 9. Austin Sarat (1995) explores how the knowledge that jurors will not have to inflict the sentence they impose, as well as the knowledge that their decision is subject to a lengthy appeals process, often helps to overcome whatever reluctance they might otherwise have about casting a vote for death. 10. For a helpful exploration of the way courtroom preoccupation with the imperatives of “super due process” occludes the bodily harm commanded by a death sentence, see Sarat 1993. 11. Anticipating Dubber’s claims regarding the work performed by various “responsibility-shifting mechanisms,” Cover concludes his essay by claiming that, when the law commands the infliction of harm, “responsibility for the violence must be shared; law must operate as a system of cues and signals to many actors who would otherwise be unwilling, incapable or irresponsible in their violent acts. The social organization of violence manifests itself in the secondary rules and principles which generally ensure that no single mind and no single will can generate the violent outcomes that follow from interpretative commitments” (1986, 1628). 12. In fairness to Cover, I should note that, in this essay, there is a tension between, on the one hand, the passages I have quoted thus far and, on the other hand, those where he suggests not that judges “set in motion” the sequence of events that culminates in the infliction of state violence, but that they themselves “deal pain and death” (1986, 1609). The present chapter in effect asks whether there is some sense in which this latter and less obvious claim can be sustained. 13. At the discretion of the court and with the consent of the defendant and the prosecuting attorney, a jury may be waived and the trial court judge shall then respond to this same question. 14. I will be glossing over a host of important complications in my brief overview of Austin’s basic argument. For a brilliant examination of some of these complications, see Felman 1983. For a still more wonderful account of these difficulties, see Austin’s own How to Do Things with Words (1962). What makes this work so delightful is its endless willingness, in each succeeding

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chapter, to deconstruct the distinctions elaborated in its predecessor. Thus, for example, by the end of this series of lectures, the initial distinction Austin draws between descriptive and performative utterances has more or less dissolved, as he has come to realize that the intelligibility of performative utterances turns on factual implications that may be true or false, and that descriptive utterances have a quasi-performative dimension insofar as the use of all language, qua action in the world, serves to refashion it in this way as opposed to that. 15. For Austin’s initial elaboration of these distinctions, as well as the example I modify here, see How to Do Things with Words (1962, 94–107). 16. See Bourdieu 1991: “By trying to understand the power of linguistic manifestations linguistically, . . . one forgets that authority comes to language from outside. . . . Language at most represents this authority, manifests and symbolizes it” (109). 17. In Excitable Speech, Judith Butler argues that Bourdieu’s account of the institutional conditions of a performative’s illocutionary force is effectively conservative: “By claiming that performative utterances are only effective when they are spoken by those who are (already) in a position of social power to exercise words as deeds, Bourdieu inadvertently forecloses the possibility of an agency that emerges from the margins of power. His main concern, however, is that the formal account of performative force be replaced by a social one; in the process, he opposes the putative playfulness of deconstruction with an account of social power that remains structurally committed to the status quo” (1997, 156). This criticism, although apt, is not of concern to me since my object of inquiry is a category of performative utterance issued by those who are unambiguously positioned as figures of authority. 18. For another argument against separating the illocutionary force of legal sentences from the conditions of their enforcement, see Derrida 1990. In this essay, Derrida recapitulates a central tenet of legal realism: “Applicability, ‘enforceability,’ is not an exterior or secondary possibility that may or may not be added as a supplement to law. It is the force essentially implied in the very concept of justice as law” (925). 19. “To what extent,” Butler writes in Excitable Speech, “does discourse gain the authority to bring about what it names through citing the linguistic conventions of authority, conventions that are themselves citations? Does a subject appear as the author of its discursive effects to the extent that the citational practice by which he/she is conditioned and mobilized remains unmarked? Indeed, could it be that the production of the subject as originator of his/her effects is precisely a consequence of this dissimulated citationality?” (1997, 51). 20. The ninth lecture of Austin’s How to Do Things with Words (1962) is entirely devoted to an elaboration and defense of the distinction between the consequences of illocutionary as opposed to perlocutionary acts. My aim here is to deny neither the intelligibility nor the utility of this distinction, but to show that it is more permeable than Austin appears to suggest. In that sense, I am


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subverting this opposition in the same way that he undoes his own distinction between performative and nonperformative utterances. 21. The question of physician participation in executions is actually more complex than I make it out to be here, in part because the AMA distinguishes between “pronouncing” death, which it finds unethical, and “certifying” death, which it finds acceptable. According to the AMA’s Council on Ethical and Judicial Affairs, “pronouncing” involves “monitoring the condition of the condemned during the execution and determining at which point the individual has actually died,” whereas “certifying” is a matter of “confirming that the individual is dead after another person has pronounced or determined that the individual is dead.” For a complete statement of these guidelines, see Council on Ethical and Judicial Affairs 1993. 22. Articulating the puzzle that is echoed by my concerns in this chapter, Cover writes: “We have done something strange in our system. We have rigidly separated the act of interpretation—of understanding what ought to be done—from the carrying out of this ‘ought to be done’ through violence. At the same time we have, at least in the criminal law, rigidly linked the carrying out of judicial orders to the act of judicial interpretation by relatively inflexible hierarchies of judicial utterances and firm obligations on the part of penal officials to heed them. Judges are both separated from, and inextricably linked to, the acts they authorize” (1986, 1627). 23. See also In re Medley (134 U.S. 160 [1890]), in which the Supreme Court considered the constitutionality of a Colorado law that mandated pre-execution solitary confinement and allowed prison wardens to conceal execution dates from the condemned. Although the Court ultimately found the Colorado law unconstitutional on ex post facto grounds, its opinion included the following claim: “[W]hen a prisoner sentenced to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.” That uncertainty “must be accompanied by an immense mental anxiety amounting to a great increase of the offender’s punishment” (172). For a summary of the primary research dealing with the psychological consequences of extended confinement on death row, see Shugrue 1995. 24. Although I do not use her specialized vocabulary, the remaining paragraphs of this section derive from the argument Scarry (1985) advances in chapter 5 of this work. For my elaboration of that argument, see Kaufman-Osborn 1997, 37–56. 25. The possibility of drawing an analogy between a person condemned to death as a result of a judicial sentence and a person condemned to death as a result of a terminal disease has not escaped the courts. See in particular Potts v. State (376 S.E. 2d 851 [1989]), in which the Georgia Supreme Court, citing the situation of someone who suffers for many years from a terminal illness, concluded that a thirteen-year stay on death row, followed by a retrial and resentencing to death row, is not cruel and unusual punishment.

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26. In this essay, Johnson reports that a large number of the men he interviewed on death row in Alabama in 1978 used the phrase “living death” to characterize their experience. That image, he writes, “highlights and integrates the dominant concerns evoked by death row confinement. The image entails the death row prisoners’ massive deprivation of personal autonomy and command over resources critical to psychological survival as well as their enforced isolation from the living, with the resulting emotional emptiness and death” (1979, 181). Building on this study, in his Death Work (1990), Johnson explores in considerable detail the processes by which those prepared for capital punishment are effectively dehumanized. On his account, the “executions that culminate this confinement are the work of instruments of authority acting within stipulated routines on condemned prisoners rendered as objects to be stored and ultimately dispatched in the execution chamber” (136–37). For a remarkably effective fictional exploration of the way in which the imposition of a death sentence imposes a sort of living death by rendering the things of this world “immaterial” and so confining the condemned to a condition of suffocating embodiment, see Sartre 1969 as well as the interpretation of this story offered by Scarry (1985, 31–32). 27. The following account of conditions and procedures on death row and in the death chamber at the Washington State Penitentiary in Walla Walla are derived from the field instructions (WSP410.500) issued by the Department of Corrections on November 4, 1992. My understanding of these conditions and procedures was amplified considerably by a tour of the Intensive Management Unit and the death chamber on January 8, 1999. I wish to thank my former student, Dave Mastin, for securing permission for me to inspect these facilities as well as the penitentiary’s superintendent, John Lambert, for his candid remarks during our tour. 28. Emile Benveniste, in chapter 22 of his Problems in General Linguistics (1971), categorically denies the possibility of an infelicitous performative on the grounds that any utterance that fails to accomplish what it says is, by definition, not a true performative. For a criticism of Benveniste’s argument, albeit one that fails to recognize how his claims unwittingly reinforce the sovereign pretensions of the modern state, see Felman 1983. Chapter 3 1. In this abbreviated account of Foucault’s claims regarding the relationship between sovereign and disciplinary power, I ignore several tensions internal to his writings on this matter. (For helpful discussions of these ambiguities, see Minson 1980 and Baxter 1996.) This omission is justified because my aim in this context is not so much to get Foucault right, as to indicate the readings that inform Ignatieff’s criticism of Weber as well as Poulantzas’s criticism of Foucault. In this note, however, I do want to cite a tension, which, were it to be acknowledged, would complicate the criticisms of both. As I have already indi-


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cated, Foucault often strictly opposes “juridico-discursive” power, that is, the form of power that defines the absolutist regimes of early modernity, and “disciplinary power,” that is, the form of power that he sometimes argues defines modernity (see, e.g., 1980c, 106). When writing in this vein, Foucault typically suggests that this opposition is categorical in the sense that that the conceptual apparatus used to make sense of juridico-discursive power cannot be employed to make sense of disciplinary power; and it is historical in the sense the latter displaces the former in time. Yet, at other times, Foucault insists that “sovereignty and disciplinary mechanisms are two absolutely integral constituents of the general mechanism of power in our society” (1980c, 108). This latter tendency, which will become important to me in chapter 7, is most fully fleshed out in Foucault’s later work on “governmentality” and, more particularly, in his claim that modern power can be represented profitably in terms of a “triangle” of “sovereignty-discipline-government” (1991a, 102). Were either Poulantzas or Ignatieff to take this later work into account, it might well require that they temper their sharp opposition between Foucault and Weber (which, in a sense, is precisely my aim in this essay). 2. Although this mandates no qualification of my main argument, I should note that Ignatieff is not uncritical of Foucault. Specifically, he argues, first, that Foucault conceptualizes all social relations as relations of domination and, as such, fails to appreciate those that are “conducted by the norms of co-operation, reciprocity and the ‘gift relationship’” (1983, 203); and, second, that even Foucault’s analysis of the prison in Discipline and Punish (1979) remains too much indebted to a “state-centred conception of social order” (1983, 204). Whereas the first charge, if true, would require a fairly fundamental revamping of Foucault’s basic categories of analysis, the second simply exhorts him to remain true to his own deconstructive account of the state. 3. Citing Weber’s The Theory of Social and Economic Organization (1947), Ignatieff writes: “Because studies of such [nonstate] grievance procedures exist only for the early modern period, it would be easy to conclude that the state expropriated such functions in its courts and prisons in the course of consolidating its monopoly over the means of legitimate violence.” But, he counters, “the monopoly of the state of the means of violence is long overdue for challenge” (1983, 205). 4. For a helpful discussion of the principal theoretical differences between Poulantzas and Foucault, especially on the question of state power, see Jessop 1986. 5. It is worth noting that, at least on occasion, Foucault effectively endorses Weber’s (and, by extension, Poulantzas’s) argument about the early modern state’s expropriation of hitherto decentered structures of power as well as its self-representation as an arbiter whose neutrality is assured by power’s appearance in the form of law: “The great institutions of power that developed in the Middle Ages—the monarchy, the state with its apparatus—rose up on the basis of a multiplicity of prior powers, and to a certain extent in opposition to them:

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dense, entangled, conflicting powers, powers tied to the direct or indirect dominion over the land, to the possession of arms, to serfdom, to bonds of suzerainty and vassalage. If these institutions were able to implant themselves, if, by profiting from a whole series of tactical alliances, they were able to gain acceptance, this was because they presented themselves as agencies of regulation, arbitration, and demarcation, as a way of introducing order in the midst of these powers, of establishing a principle that would temper them and distribute them according to boundaries and a fixed hierarchy. . . . The slogan of this regime, pax et justitia, in keeping with the function it laid claim to, established peace as a prohibition of feudal or private wars, and justice as a way of suspending the private settling of lawsuits” (Foucault 1980a, 86–87). 6. See also Weber 1958b: “[T]he history of rationalism shows a development which by no means follows parallel lines in the various departments of life. . . . In fact, one may—this simple proposition, which is often forgotten, should be placed at the beginning of every study which essays to deal with rationalism—rationalize life from fundamentally different basic points of view and in different directions. Rationalism is a historical concept which covers a whole world of different things” (77–78). For a helpful elaboration of Weber’s concept of rationalization, see Brubaker 1984. 7. See also Garland 1990: “For Foucault, the combined outcome of the growth of discipline, the influence of human science, and the extended power of the administrative networks has been to restructure penal practice in a new way. His own description of this new form of penality centers upon its intrinsic forms of power and knowledge and its relationship to the offender’s body, but, as we have seen, one can also understand this in broader, Weberian terms, as the tendency towards rationalization in the penal realm” (189). 8. This generalization should be qualified since, on occasion, Weber is quite attentive to the way in which forms of rationality are inscribed within and constitutive of specific practices. See, for example, his insightful discussion of “discipline” in modern military organizations as well as in capitalist factories (1978, 2:1148–57). This discussion can easily be read as an anticipation of Foucault’s general concerns in Discipline and Punish (1979). 9. Scholarship concerning the conduct of hanging prior to the sixteenth century is quite thin. I have relied primarily on the accounts offered by Abbott 1991, 1994; Atholl 1954; Bland 1984; Laurence 1971; and Marks 1947. 10. The earliest mention of Tyburn in conjunction with an execution occurs in 1196 when William FitzOsbert, better known as “Longbeard,” was hanged. The site of the gallows is now marked by a small circular plaque embedded in the bricks of a virtually inaccessible traffic circle where Edgware Road meets Oxford Street, adjacent to London’s Marble Arch. 11. Hay’s approximation is echoed by Langbein (1977), who estimates that, during Elizabeth’s last years, executions numbered about eight hundred per year (40). For the citation of numbers much higher than those offered by Hay and Langbein, see Rusche and Kirchheimer 1939, 19; and Abbott 1994, 235.


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Reliable figures on the number of executions are available for the years following 1701, not before. For helpful tables indicating English execution rates during the eighteenth and nineteenth centuries, see Gatrell 1994, 616–19. 12. For a careful discussion of Weber’s analysis of the persistent irrationalities of specifically English law, see Sugarman 1985. 13. For what is perhaps the most careful account of the conduct of executions at Tyburn, including the numerous misadventures that occurred there, see Radzinowicz 1948, 165–205. 14. In the first decade of the nineteenth century, because the crowds at Newgate executions continued to prove unruly, the scaffold was moved to a significantly higher platform. This reconstruction, writes John Bender, “made for a sharply demarcated relation between beholder and criminal and heightened the pictorial effect by holding the public at a distance and forcing their gaze upward” (1987, 247). To compare the initial gallows erected outside Newgate with its taller counterpart, see the two plates that appear in Bender 1987, 248. 15. Mackay was not the first to be executed under the terms of the new statute. That honor was reserved for Thomas Wells, an eighteen-year-old railway porter, who did not respond well when the Dover stationmaster chastised him. He was hanged privately at Maidstone on August 13, 1868. 16. For accounts of that standardized scaffold pattern, see Abbott 1991, 141; and Atholl 1954, 104. It is worth noting that those who were required to use this table expressed skepticism about its utility and, in a sense, resisted the rationalization of their craft. Quoting the unnamed official who trained him, Albert Pierrepoint writes, “Get it right, we don’t want any butchery. Now you’ve got your table, Home Office issue, table of drops, executioners, for the use of. Use it, but use your own judgment too. Remember it’s only a guide, and you’ve got to vary it according to your experience. Pull the man’s head off and it’s no use saying ‘But that’s what it had in the table’” (n.d., 179). Chapter 4 1. The four states are Washington, Montana, Delaware, and New Hampshire. New Hampshire authorizes hanging only if lethal injection cannot be administered. Delaware authorizes lethal injection for those whose capital offenses occurred after July 4, 1983; those whose offenses were committed before that date may select lethal injection or hanging. Similarly, Montana and Washington now define lethal injection as their primary method of execution, with hanging available at the option of the condemned. 2. For an excellent expression of this characterization of hanging, see Judge Reinhardt’s dissenting opinion in Campbell v. Wood (18 F.3d 662 [9th Cir. 1994]): “[H]anging is a savage and barbaric method of terminating human life. We are convinced that judicial hanging is an ugly vestige of earlier, less civilized times when science had not yet developed medically-appropriate methods of bring-

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ing human life to an end. . . . Hanging is associated with lynching, with frontier justice, and with our ugly, nasty, and best-forgotten history of bodies swinging from the trees or exhibited in public places” (701). 3. To illustrate this argument, consider the example of lightning. Our conventional understanding is implicit in the claim: “Look at the lightning flash.” On this grammatical construction, lightning is taken to be the independent substance that generates the flash qua effect. To oppose this account, Nietzsche might write something like the following: “Look at the lightning-flash,” where the hyphen signifies not the discrimination of cause from effect, but rather a concurrent configuration of events within which no one substantial thing can be unambiguously discriminated as substance or attribute, cause or effect. We imagine that we can engage in such discrimination only because we abstract from this myriad of events those that happen to concern us at present, and we then treat the sum of those effects as the substantial source of the property that is the flash. But, in the last analysis, there is no lightning behind the flash; “it” is that flash, that mobile configuration of effects, nothing more and nothing less. My thanks to Tom Davis for this example. 4. Most mainstream legal scholarship, I would argue, occludes the constitutive relationship between law and violence. For a seminal effort to render this relationship visible, see Cover 1986. For two essays written in the spirit of Cover, see Sarat and Kearns 1991, 1995. 5. This commitment was given its constitutional (as opposed to technical) articulation when, in his dissenting opinion in Francis v. Resweber, 329 U.S. 459 (1947), Justice Burton insisted that the “all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself” (474). 6. In this chapter, I appropriate Scarry’s (1985) argument about pain’s resistance to linguistic articulation. In the next chapter, however, I will show why, on political grounds, we should reject her more extreme claim to the effect that pain can never be afforded such articulation and, as such, is necessarily and radically solipsistic. 7. In this regard, it is worth noting that the garrote was rejected as a method of execution by the New York State Commission on Capital Punishment of 1888 on the grounds that it, although certain to lead to a quick death, does not do so via a single causal mechanism: “Physiologically considered, it involves two causes of death, one a mashing of the spinal column, the chief bone of the body; the other a strangulation analagous [sic] to that produced in hanging. No reasons are seen why two fatal elements should be employed. Surely an apparatus can be arranged such that one, single, simple cause of death can be put in operation quickly, certainly and humanely. To multiply the causes savors of barbarity” (50). To multiply the causes, in other words, mocks the rationalizing ideal implicit within the metaphysic of the hangman. 8. I wish to thank Alan Hyde for making this paper available to me.


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Chapter 5 1. My representation of modernist pain as an unmitigated evil to be wholly eradicated requires some qualification. It is only in recent decades that the medical profession has come to think of pain’s amelioration as something akin to a categorical imperative. When anesthesia was first introduced, by way of contrast, it was not uncommon for physicians to resist its use in surgery either on the ground that the pain that accompanies and follows an operation is a functionally necessary constituent of the physiological processes of recuperation, or on the ground that such pain is a form of divine punishment for human depravity. Traces of this theological construction remain apparent in the discourse of those who represent the pain endured by AIDS patients as a punishment for sinful sexual conduct. Moreover, the colloquial expression “No pain, no gain,” suggests that in certain contexts—e.g., athletic competitions and bodybuilding—pain is not figured as a purely aversive reality; and much the same is true of those who argue on behalf of “natural” childbirth. 2. Granted, these photographs offer a different sort of testimony than do Shaw’s words, if only because human eyes simultaneously grasp the coexistent parts of the whole that is offered by a visual representation, whereas language unfolds its synthetic meanings in time as each word gives way to the next. Whether intended or not, Shaw’s prose attempts to mimic the visceral immediacy of these photographs through the breathlessness of his remarkable singlesentence description, an effect created by the use of semicolons wherever a period might introduce a more emphatic break. If only in part, Shaw’s account thereby counters the majority’s disaggregation of the extended performance that is the execution of Allen Lee Davis, its breaking of that complex event into so many discrete units of space and time, each of which can be rendered unproblematic in the eyes of the law. 3. For an ultimately unsuccessful attempt to assess the amount of pain caused by different methods of execution, see Hillman 1993. “It is difficult to know,” Hillman writes, “how much pain the person being executed feels or for how long because many of the signs of pain are obscured by the procedure or by physical restraints.” Hence, at best, “one can identify those steps which are likely to be painful” (745–55). This skeptical conclusion is not sufficient, however, to prevent Hillman from offering a chart in which he claims to identify the causes of pain occasioned by different methods of execution, the sort of sensation produced by each cause, and the intensity of each such sensation, although he does reluctantly confess that “the likely duration of the sensations is not known” (749). 4. For a helpful account of the distinguishing features of the English grammar of pain, see Fabrega and Tyman 1976b. For an indication of the different ways several Asian languages fashion the experience of pain, see Diller 1980. Whereas the English language of pain is defined, for the most part, by certain undifferentiated nouns that are qualified adjectivally (e.g., a sharp pain or a

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burning pain), the Thai language is defined by a series of verbs that are less prone to such qualification because the discriminations afforded by adjectives in English are already contained within them. It is also worth noting that the Thai discourse of pain draws no clear distinction between what speakers of English label physiological as opposed to psychological or emotional distress. 5. For an example of work that affirms the cultural variability of pain but retains the problematic distinction between its prediscursive reality and its linguistic formulation, see Fabrega and Tyma 1976a: “To place the analysis in perspective, we have to remember that in rendering a description the individual has to first choose appropriate words which in his language label his experience. Following this, he must place these words in more or less well formed utterances which realize his grammatical rules. In the process, he renders pain as a linguistic object” (325). Chapter 6 1. See, e.g., Last 1998: “Notably absent from the hoopla over Tucker, however, were America’s feminists, those activists who have so much to say on every other topic that touches upon women. And they were absent—or utterly incoherent, on those occasions when they did try to make a statement to the press—primarily because feminism hasn’t been able to decide what to think about gentler treatment accorded women by the justice system. It’s hard to say you’re out to help women if you want women treated as harshly as men; but it’s hard to say you’re for equal treatment if you don’t” (35). 2. Tucker’s gender identity was actually more complex than I have rendered it here. Shortly before her arrest, she boasted to a friend that she experienced an orgasm each time she drove a pickax into the bodies of her victims, thereby marking her as something closer to a man, albeit one who reveals far more than one should about the sexualization of violence in contemporary American culture. By the time of her death, however, she was married, fastidiously attentive to her appearance, and infinitely repentant, all clear indicators that she had gone a long way toward resecuring the status of a woman. Absent that transformation, her execution would have occasioned considerably less controversy, a fact borne out by the comparatively humdrum execution of the “Black Widow,” Judy Buenoano, two months later. 3. For a variety of reasons, it is not at all clear that we should welcome this more complete realization of the liberal ideal of equality under the law. To cite but one, consider the following: “Many prosecutors sounded like feminists in arguing that the Tucker execution signaled that women indeed had achieved equal rights in capital litigation, and were being held just as accountable for their actions as men are” (Verhovek 1998a, 1). Leaving aside whatever misgivings we should experience when state prosecutors and feminists are said to sing the same tune, when the law is legitimated on the grounds that it has at last made good on its promise of equality, the cultivation of that appearance may well occlude our appreciation of gender-based discrimination in domains that receive considerably less attention from CNN. Ironically, one of those domains


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may be the courtroom itself. Since 1972, the Supreme Court has endorsed the view, to quote from Justice Brennan’s concurring opinion in Furman v. Georgia (408 U.S. 238 [1972]), that “death is different” in the sense that, relative to others, it is “an unusually severe punishment, unusual in its pain, in its finality, and in its enormity” (287–89). In conjunction with this dissociation of capital punishment from more routinized modes of state violence, the Court has mandated a lengthy series of state and federal appellate reviews before any given death sentence is actually carried out. Yet, as Radin (1980) and others have noted, this appearance of punctilious formal rationality masks the virtually unconstrained discretionary latitude that is in fact granted to capital sentencers, especially given the Court’s refusal to circumscribe the range of possible mitigating factors, and hence the ways gender actually impinges upon the juridical administration of death. By propping up liberalism’s abstract myth of formal equality, in other words, the execution of a woman now and then may help to disguise the concrete workings of sexism within the liberal body politic. 4. See Weissberg 1983: “If we fancifully treat the judiciary as a single and calculating mind, we could say that it has conceived a fiendishly clever way of satisfying the competing demands on the death penalty: We will sentence vast numbers of murderers to death, but execute virtually none of them. Simply having many death sentences can satisfy many proponents of the death penalty who demand capital punishment, because in a vague way they want the law to make a statement of social authority and control. It will also satisfy jurors who want to make that statement in specific cases with the reassurance that the death sentence will never really be carried out. And we can at the same time avoid arousing great numbers of people who would vent their moral and political opposition to capital punishment only on the occasion of actual executions” (387). 5. Obviously, I do not mean to represent this as a complete catalog of the pressures that enter into determination of the actual number of death sentences carried out. Consider, for example, the plausible claim that the emancipation of women from traditional restraints provokes an anxiety-ridden backlash whose manifestations range from the antiabortion crusade to the Defense of Marriage Act. If the criminal justice system is, at least in part, a vehicle through which the collective desire for revenge sometimes expresses itself, then it is certainly possible that the state will be pressed to execute women who are, in effect, asked to stand as surrogates for those who have provoked such anxiety. On this point generally, see Connolly 1991 and, more particularly, his representation of the contemporary liberal state as “a ministry for collective salvation through a politics of generalized resentment” (207). Chapter 7 1. With respect to neutralizing the opposition, consider the following quotation, taken from the Oklahoma City Times, February 3, 1977: “The most telling point in favor of the drug method is that it might restore the death penalty to actual use” (1). For a helpful review of various court challenges to lethal injec-

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tion as a method of execution, all of which have proven unsuccessful, see Skelton 1997. Most courts, Skelton explains, have simply affirmed the constitutionality of lethal injection without extensive comment. Moreover, and without exception, those that have addressed the merits of the Eighth Amendment claims have found that lethal injection does not constitute cruel and unusual punishment. For the most careful judicial consideration of these claims of which I am aware, see LaGrand v. Lewis, 883 F.Supp. 469 (1995). 2. In suggesting that Foucault’s category of “governmentality” builds on the categories introduced in the closing chapter of The History of Sexuality (1980a), I am glossing over a host of interpretive problems. To see the point, consider the questions raised by David Garland concerning the proliferation of categories in Foucault’s later work: “Some of the concepts are neologisms (‘biopower,’ ‘pastoral power,’ ‘governmentality’); others are historical terms (‘police,’ ‘raison d’ètat’) and others are conventional terms of analysis to which Foucault imparts a slightly unconventional meaning (e.g., his use of the terms ‘liberalism’ and ‘security’). This can lead to some confusion. It is not clear, for example, how ‘pastoral power,’ ‘bio-power’ and ‘security’ relate to one another; are they distinct kinds of practices, or different names for the same kind of thing? Nor is it clear how these relate to the notion of ‘governmentality.’ Is bio-power an earlier term for the ‘governmental’ form of power, or merely a specific instance of it? Is the contrast between the ‘anatomo-political’ and the ‘bio-political’ the same as the contrast between ‘discipline’ and ‘government’?” (1997, 193–94). While sorting out these terminological complexities is no doubt important, it is not immediately relevant to my effort to establish a context for making sense of the politics of lethal injection. 3. See also Rose and Miller 1992: “Central to the possibility of modern forms of government are the associations formed between entities constituted as ‘political’ and the projects, plans, and practices of those authorities—economic, legal, spiritual, medical, technical—who endeavour to administer the lives of others in the light of conceptions of what is good, healthy, normal, virtuous, efficient or profitable. Knowledge is thus central to these activities of government and to the very formation of its objects, for government is a domain of cognition, calculation, experimentation and evaluation. And, we argue, government is intrinsically linked to the activities of expertise, whose role is not one of weaving an all-pervasive web of ‘social control,’ but of enacting assorted attempts at the calculated administration of diverse aspects of conduct through countless, often competing, local tactics of education, persuasion, inducement, management, incitement, motivation and encouragement” (175). 4. See, for example, Foucault 1980a: “And if it is true that the juridical system was useful for representing, albeit in a nonexhaustive way, a power that was centered primarily around deduction (prélèvement) and death, it is utterly incongruous with the new methods of power whose operation is not ensured by right but by technique, not by law but by normalization, not by punishment but by control, methods that are employed on all levels and in forms that go


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beyond the state and its apparatus” (89). See also his claim in “Governmentality” (1991a): “Whereas the end of sovereignty is internal to itself and possesses its own intrinsic instruments in the shape of its laws, the finality of government resides in the things it manages and in the pursuit of the perfection and intensification of the processes which it directs, and the instruments of government, instead of being laws, now come to be a range of multiform tactics” (95). 5. See, for example, Foucault 1980c: “[T]he theory of sovereignty, and the organisation of a legal code centred upon it, have allowed a system of right to be superimposed upon the mechanisms of discipline in such a way as to conceal its actual procedures, the element of domination inherent in its techniques, and to guarantee to everyone, by virtue of the sovereignty of the State, the exercise of his proper sovereign rights” (105). 6. I realize that in asking this question I am glossing over what some might consider an important problem. Specifically, I am assuming that the categories of analysis Foucault derives from his reflections about European states can be transposed to the United States. While it is true that I am not considering the cultural and political peculiarities that complicate this project, I remain persuaded that the categories of analysis provided by Foucault are of use in highlighting the conflicting imperatives confronted by liberal regimes on both sides of the Atlantic. That, of course, is not to deny that there is much work to be done in terms of identifying and exploring the features that distinguish each from the others. 7. See, for example, Foucault’s claim in “Governmentality” (1991a): “We need to see things not in terms of the replacement of a society of sovereignty by a disciplinary society and the subsequent replacement of a disciplinary society by a society of government; in reality one has a triangle, sovereignty-disciplinegovernment” (102). The careful reader will notice that I have altered the structure of Foucault’s triangle in the sense that I have labeled its sides sovereignty, anatomo-politics, and biopolitics. I have then situated Foucault’s triangle, thus conceived, on the more comprehensive political field designated by the term governmentality. This, I think, is more consistent with the overall thrust of his argument, and, even if that is not the case, it is certainly more conducive to my purposes in this chapter. 8. The relationship between these two issues grows more direct when we ask whether someone condemned to die should be permitted to “commit suicide” by waiving the right to all postconviction appeals, thereby bringing on an execution that would otherwise be delayed by additional judicial review. To support an affirmative response to this question, some have argued that the situation of a person condemned to die is, in crucial respects, analogous to that of a person suffering from a terminal illness. For explorations of some of these questions, see Johnson 1981 and Urofsky 1993. 9. In a comparative vein, it is worth noting that England’s Royal Commission on Capital Punishment (1953) also explored lethal injection as an alternative to hanging, but ultimately elected not to recommend this innovation, pri-

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marily in response to objections registered by the British Medical Association. Intriguingly, and perhaps suggesting a significant difference between American and British culture, the commission also rejected lethal injection on the ground that it is easier for the condemned “to show courage and composure in his last moments if the final act required of him is a positive one, such as walking to the scaffold, than if it is mere passivity, like awaiting the prick of a needle” (par. 748). 10. See, for example, Title 11, Article 4209(f) of Delaware Code Revised (1995): “The administration of the required lethal substances . . . shall not be construed to be the practice of medicine and any pharmacist or pharmaceutical supplier is authorized to dispense drugs [to the commissioner of the Department of Corrections] without prescription.” 11. Policy H-140.957 of the American Medical Association reads in part: “An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a state execution. ‘Physician participation in execution’ is defined generally as actions which would fall into one or more of the following categories: (a) an action which would directly cause the death of the condemned; (b) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (c) an action which could automatically cause an execution to be carried out on a condemned prisoner.” The policy goes on to state that, when the method is lethal injection, “the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing or maintaining lethal injection devices; consulting with or supervising lethal injection personnel.” In spite of this policy, virtually every state that employs lethal injection as a method of execution requires that a physician be present, although that party’s specific responsibilities varies considerably from state to state. Some statutes require that a physician “determine” or “pronounce” death; some indicate that a physician must be among the witnesses to an execution; some simply instruct the warden or superintendent to “invite” or “cause” a physician to attend; and some stipulate that licensed health care officials can be compelled to participate in an execution. For a complete list of state statutory requirements concerning the role of physicians at executions, see the study issued by the American College of Physicians, Human Rights Watch, the National Coalition to Abolish the Death Penalty, and Physicians for Human Rights (1994), titled Breach of Trust: Physician Participation in Execution. 12. See, for example, Hill v. Lockhart (791 F.Supp. 1388 [1992]), in which a person condemned to die in Arkansas by means of lethal injection contended that, because the relevant statute does not require that this procedure be performed by the appropriate expert, that is, by a physician, the state cannot guar-


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antee that execution by this means will not violate the Eighth Amendment’s prohibition of “cruel” punishments. 13. For a careful account of the legal controversy that emerged out of this petition, see Stolls 1985. 14. For a later variation on the arguments advanced in Chaney v. Heckler (1983), see Delaware v. Deputy (644 A.2d 411 [1994]). In this case, an inmate challenged a state statute, first, on the ground that it authorized correctional officers to obtain controlled substances absent a prescription, as required by the Food and Drug Administration; and, second, on the ground that it did not provide guidelines concerning the selection and training of the persons to administer a lethal injection. This suit proved no more successful than did Chaney. 15. The authors who come closest to appreciating the oddly revelatory import of Heckler v. Chaney (1985) are Zimring and Hawkins (1986). After reviewing the twists and turns of this case, they write: “The author whose work comes to mind here is, of course, Lewis Carroll. The trial scene at the end of Alice’s Adventures in Wonderland bears a number of similarities to the litigation and the controversy we have described. Some critics have seen the nonsensical nature of the trial of the Knave of Hearts as a metaphor for real and tragic features of human existence, and it has for this reason been compared with Kafka’s The Trial. In the Chaney case, too, the surface absurdities arise from, and direct attention to, a monstrous underlying reality” (119). 16. Garland (1985) disagrees with Foucault, not in the sense that he rejects his argument regarding the most apt way to characterize the shift from early modern to modern forms of penality, but rather in the sense that he is persuaded that, at least in the context of England, the transformations noted by Foucault did not take place until the late nineteenth and early twentieth centuries. I find Garland persuasive on this point, and I would make much the same argument in the context of the United States. For another exploration of these transformations, again in the context of England, see Cohen 1985. 17. In typically opaque prose, Max Weber makes much the same point when, in Economy and Society, he writes: “The modern position of political associations rests on the prestige bestowed on them by the belief, held by their members, in a specific consecration: the ‘legitimacy’ of that social action which is ordered and regulated by them. This prestige is particularly powerful where, and in so far as, social action comprises physical coercion, including the power to dispose over life and death. It is on this prestige that the consensus on the specific legitimacy of action is founded” (1978, 1:903–4). 18. For an account of the various ways executions by lethal injection can go wrong, see Denno 1998.

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Weissberg, Robert. 1983. “Deregulating Death.” In 1983: The Supreme Court Review, ed. Philip Kurland, Gerhard Casper, and Dennis Hutchinson. Chicago: University of Chicago Press. Wittgenstein, Ludwig. 1953. Philosophical Investigations. Trans. G. E. M. Anscombe. New York: Macmillan. Zimring, Franklin, and Gordon Hawkins. 1986. Capital Punishment and the American Agenda. Cambridge: Cambridge University Press.

Index

Act to Provide for the Carrying out of Capital Punishment in Prisons (1868), 84 American Bar Association call for moratorium, 9–10 American Medical Association on physician-assisted suicide, 196–97 on physician participation in executions, 32, 199, 219n. 21, 230n. 11 analogical verification, 172–76, 205–6, 213 anatomo-politics, 48–49, 187 See also Foucault, Michel Anti-Terrorism and Effective Death Penalty Act, 11 Ariès, Philippe, 192 Ashcroft, John, 10 Austin, J. L. Bourdieu’s criticism of, 26–28 on performative utterances, 23–26, 218n. 20 mentioned, 5, 6, 16, 31, 33–34, 35, 36, 43, 98, 217n. 14 See also death sentences; executions; performative utterances Barrett, Michael, 83 Bauman, Zygmunt, 193–94, 195 Beattie, J. M., 64 Bender, John, 223n. 14 Benveniste, Emile, 220n. 28 Berry, James, 90

biopolitics, 9, 185–92, 200–209 See also Foucault, Michel Blackmun, Harry, 12, 216n. 7 Blackstone, William, 82 body (condemned) as absent, 113 as abstraction, 107–8, 113–14, 173–74, 213 as anachronism, 109–12 as distinguished from person, 142–43 lethally injected, 182, 212–14 as obstacle to rationalized hanging, 122–23 sympathetic, 149, 213 variability of, 121–23 See also capital punishment; death row; death sentences; executions; torture Bourdieu, Pierre criticism of Austin on performative utterances, 26–29, 36 mentioned, 5, 33, 36, 218n. 17 Brady, William, 125 Brennan, William, 39, 197, 198, 210, 227n. 3 Breyer, Stephen, 13, 14 British Medical Association, 229n. 9 Britt, Dennis, 98–99 Brooks, Charlie, 212 Brown, Wendy, 5 Brownworth, Victoria, 168 Buenoano, Judy, 226n. 2 bureaucratization. See rationalization

243

244 Burton, Harold, 224n. 5 Bush, George W., 165 Bush, Jeb, 144 Butler, Judith criticism of Bourdieu, 28–31, 218n. 17 on hate speech, 36 on judges, 28–31, 99 on performative utterances, 28–31, 36, 44, 99, 218n. 19 on power, 100 mentioned, 5 Callins v. Collins, 12, 211 Campbell, Charles crime of, 102 evidentiary hearing on hanging of, 94–95, 112–33 on question of certainty, 114–23 on question of pain, 123–29 table of drop lengths, 118–19, 121 execution of, 93–94, 132–33 sentencing of, 98, 102 mentioned, 7, 103, 182, 183 See also death row; death sentences; Dodd, Westley Allan; executions; hanging Campbell v. Blodgett, 95–96, 112–33 Campbell v. Wood, 93–94 Camus, Albert, 19 capital punishment constitutionality of, 10–11 as cruel and unusual, 15–16 as “different,” 197, 210, 227n. 3 dilemmas posed by, 3–9 and discourse of humanitarianism, 2, 183, 214 division of labor in, 19–21 future of, in U.S., 9–12 as institution, 26–28 moratorium movement, 10–12 public support of, 10–12

Index scholarship about, 2–3, 10, 165–66, 169–70 and sovereignty, 208–9 as waste management, 209–10, 214 See also death row; death sentences; executions; gender; race; sovereignty; state, liberal; trials, capital Carroll, Jenny, 168 Champion, Jane, 166 Chaney, Larry, 200–205, 207 Connolly, William, 171, 172, 207–8, 227n. 5 Coughenour, John as presiding judge in Campbell v. Blodgett, 96, 112, 113, 119, 120 ruling in Campbell v. Blodgett, 129–32 Cover, Robert on imposition and infliction of death sentence, 21–22, 34–35 on law and violence, 135 mentioned, 37, 159, 216n. 6, 217nn. 8, 11, 12, 219n. 22 Cransworth, Lord Chancellor, 84 Damiens, 141–42, 212, 213 Davis, Allen Lee crime of, 144 execution of, 144–45 Florida Supreme Court examination of, 146–56 Court opinion, 146–49 dissenting opinion, 149–56 post-execution photograph of, 152, 225n. 2 mentioned, 7, 15, 163, 183, 211 See also death row; death sentences; electrocution; executions Davis, Michael, 196, 199 death rationalization of, 192–97 See also capital punishment; death

Index row; death sentences; executions; suicide death row and Lackey claims, 13–16 as living death, 41–42, 220n. 26, 229n. 8 See also death sentences; executions; Lackey claims death sentences imposition vs. infliction of, 17, 19–22 as performative utterance, 5–6, 25–31 as botched performatives, 44–45 See also capital punishment; death row; Dodd, Westley Allan; executions; judges; performative utterances; trials, capital Defense of Marriage Act, 227n. 5 Derrida, Jacques, 218n. 18 disciplinary power. See anatomo-politics Dodd, Westley Allan crime of, 22 on death row, 41–43 execution of, 1–2, 23, 31–33, 124 role in Campbell evidentiary hearing, 113–17, 124–29, 131 sentencing of, 38–39 trial of, 22–23 mentioned, 6, 16, 31, 38, 155, 182–83 See also Campbell, Charles; death row; death sentences; executions; performative utterances Drake, C. J., 179 Dreyfus, Hubert, 56 Dubber, Markus, 17, 20–21, 30, 216n. 5 Duffy, Clinton, 119 Edelman, Murray, 172 Eighth amendment, 6, 7, 13, 15, 117, 202, 227n. 1, 230n. 12

245 electrocution of Allen Lee Davis, 144–45 shift from hanging to, 105–6 See also Davis, Allen Lee Elledge, William, 13 Ellsworth, Phoebe, 11 England capital statutes in, 68, 71 rationalization of hanging in, 47–90 rationalization of state in, 47–90 Espy, Walt, 119 executions botched, 214 delay between sentences and, 13–16, 123–29, 135–64, 215n. 3, 219nn. 23, 25, 220n. 26 frequency of, 176–77, 227n. 4 ideal conduct of, 95, 108–12 celerity, 108–9 painless, 109–12 as nonevents, 179, 199, 210–11, 213 and pain, 224n. 5, 225n. 3 as performatives, 33–39 as premodern spectacle, 141–42 quest for humane, 2, 4, 214, 224n. 7 stays of, 217n. 8 See also Campbell, Charles; capital punishment; Davis, Allen Lee; death sentences; Dodd, Westley Allan; electrocution; firing squad; gas chamber; hanging; Lackey claims; lethal injection; Tucker, Karla Faye Fabrega, Horacio, Jr., 225–26nn. 4, 5 Federal Death Penalty Act (1994), 11 feminism. See gender Ferrers, Lord, 76–77, 82 Fielding, Henry, 84 firing squad, 9 Florida Supreme Court, 7 See also Davis, Allen Lee Food and Drug Administration, 8, 200–204

246 Food, Drug, and Cosmetics Act (1982), 200–201 Foucault, Michel on anatomo-politics, 187 on biopolitics, 9, 186–88 on capital punishment as anachronism, 53–54, 204–5 criticism of liberalism, 49 on death, 195 on governmentality, 8–9, 188–92, 228n. 4 inconsistent categories in writings of, 228n. 2 on juridico-discursive vs. disciplinary power, 220n. 1, 229n. 5 on juridico-medical complex, 195–97 on myth of the modern state, 48–50, 59–60 on premodern executions, 141–42 on rationalization, 55–57 on sovereignty, 185–86, 191 on triangulated conception of state, 191–92, 197–98, 205, 207, 209, 229n. 7 mentioned, 2, 4, 5, 6, 47, 48, 106, 111, 141, 181, 182, 212, 213 See also body; capital punishment; death; executions; governmentality; liberalism; medicalization; rationalization; sovereignty; state, liberal; Weber, Max Fourteenth amendment, 15 Furman v. Georgia, 19, 39–40, 41, 167, 180, 197, 227n. 3 Garland, David, 86, 207, 209, 222n. 7, 228n. 2, 231n. 16 gas chamber, 9 gender crimes of men sentenced to death, 167 dilemma posed by execution of

Index women, 8, 170–76 possible resolution of, 176–77 execution of women in U.S., 166–67 explanation for death sentences imposed, 168, 227n. 5 explanation for small number of, 167–68 and homicide statutes, 169 scholarship on capital punishment and, 165, 169–70 See also race; Tucker, Karla Faye globalization, 4, 172, 207–8 governmentality, 4, 188–92, 207, 228n. 3 See also Foucault, Michel; state, liberal Gregg v. Georgia, 15, 146, 180 Gross, Samuel, 11 Habermas, Jürgen, 171 Haines, Herb, 108 Handy, Gathorne, 84–85 hanging cervical dislocation caused by, 91 criticism of, 7, 105, 223n. 2 disenchantment of, 92, 107–8 history of, in England, 62–92 from fifth to sixteenth century, 63–66 at Newgate (behind its walls), 83–90 at Newgate (outside its walls), 78–83 drawing of 1783 scaffold, 79 Report of the Committee to Inquire into the Execution of Capital Sentences (1886), 87–89, 104–5, 118 table of drop lengths, 87–89, 104–5, 107 Royal Commission on Capital Punishment (1953), 90, 108, 229n. 9 at Tyburn, 66–78

Index history of, in U.S., 93, 105—8 English table of drop lengths imported, 104–6, 118 rationalization of, 105–12 retained in some states, 223n. 1 ideal conduct of, 95, 108–12 celerity, 108–9 painless, 109–12 of Lord Ferrers, 76–77 See also Campbell, Charles; Dodd, Westley Allan; Eighth amendment; England; executions; rationalization; state, liberal hangmen absence of, in Washington State, 115–16 selection of, in premodern England, 65–66 status of, in modern England, 89–90 See also Marwood, William; Pierrepoint, Albert Harris, Robert (judge) presiding over trial of Dodd, Westley Allan, 22–23, 25–26, 29, 30, 31, 33, 35–36, 38 Harris, Robert Alton (condemned), 217 Harry, Father Alvin, 119–21 Hawkins, Gordon, 231n. 15 Hay, Douglas, 68, 71, 222n. 11 Heath, William, 17, 20, 22, 38 Merry England, 18 Heckler v. Chaney, 183, 200–205, 231n. 15 Henry II, 65 Henry III, 66 Henry VIII, 68 Hill, David, 105 Hillman, Harold, 91, 225n. 3 Hobbes, Thomas, 195 Hogarth, William, 66, 70, 74–75, 88 The Idle ’Prentice Executed at Tyburn, 67

247 Hyde, Alan, 142–43, 149, 213 Ignatieff, Michael criticism of Foucault, 220n. 1, 221n. 2 criticism of Weber, 48–50, 58, 221n. 3 Illich, Ivan, 136–38, 159 International Association for the Study of Pain, 138, 139 Iseli, Lee, 22 James, Deryk, 91, 126, 128–29 Johnson, Robert, 220n. 26 judges authority of, 29–31 in capital trials, 19 death sentences as performative utterances, 22–31 dissociated from infliction of punishment, 17, 45, 216n. 5 at executions, 215n. 4 See also capital punishment; death sentences; executions; performative utterances; trials, capital Kearns, Thomas, 34–35 Kemmler, William, 39 King, Rodney, 147 Kleinman, Arthur, 141 Knight, Thomas, 13, 14 Lackey, Clarence, 13–16, 22, 31, 39, 45 Lackey claims, 5–6, 13–16, 215n. 2 Langbein, John, 222n. 11 Last, Jonathan, 226n. 1 Laurie, Peter, 77 law and equality, 61–62 and governmentality, 189–90 ingredients of, 7, 95, 97–104 legitimacy and its loss, 5–6, 17–19, 47, 74, 100–101

248 law (continued) liberal conception of, 73–74 Nietzsche’s interpretation of, 94–104 and violence, 17–20, 130, 216n. 7, 217n. 11 Weberian conception of, 51, 64 See also capital punishment; governmentality; judges; state, liberal; trials, capital Leonard, John, 12 lethal injection and dilemmas of capital punishment, 182–83 failure of, 9, 209–14 and governmentality, 198, 205 history of adoption in U.S., 93, 180, 227n. 1 legal challenges to, 200–205, 227n. 1, 230n. 12, 231n. 14 machinery employed in, 181–82 as medicalized procedure, 198–200, 230n. 10 physician participation in, 230n. 11, 230n. 12 protocol for, 180–81 rejected in England, 229n. 9 and the unmarked body, 110–11, 127 mentioned, 8–9, 20 See also biopolitics; capital punishment; governmentality; medicalization; rationalization; sovereignty; state, liberal Leuchter, Fred, 108–9, 181 liberalism contribution to rationalization of modern state, 47, 59–60, 71–74 dilemma posed by execution of women, 170–77 See also law; Locke, John; state, liberal liberal state. See state, liberal Lifton, Jay, 10, 12

Index Linebaugh, Peter, 68 Lobsenz, James, 118, 129 Locke, John on public/private distinction, 70–74 mentioned, 4, 5, 6, 81, 174 See also liberalism; rationalization; state, liberal Lofland, John, 179 Lynch, Mona, 209–11, 214 Mackay, Alexander, 84 Madame Tussaud’s Exhibition, 91, 92 Madow, Michael, 106–9, 142 Mandeville, Bernard, 75–76 Marshall, Thurgood, 167 Marwood, William, 87–90, 91, 116 See also hanging; hangmen Marx, Karl, 72 McElvaine, Charles, 142 McGowen, Randall, 81 McNeill, John, 151 McVeigh, Timothy, 10 medicalization of capital punishment, 9 of death, 194–97 of modern understanding of pain, 138–41 Melzack, Ronald, 139–41 metaphysics of the hangman. See Nietzsche, Friedrich Miller, Peter, 228n. 3 Misson, M., 69 Mitchell, Greg, 10, 12 Mitchell, Timothy, 58–59, 69 Moore, Carey Dean, 13, 14 moratorium. See capital punishment Morris, David, 160 Morris, Eugene, 145 Morton, William, 137 Nasmyth-Jones, Rachel, 91 needle. See lethal injection Neer, Cole, 22

Index Neer, William, 22 Newgate prison drawing of 1783 scaffold, 79 move of executions from Tyburn to, 78–83 mentioned, 6, 69, 223n. 14 See also hanging; liberalism; Locke, John; rationalization; state, liberal new penology, 209–10 Nietzsche, Friedrich metaphysics of the hangman, 94–95, 96–104 and judges, 98–99 and punishable subjects, 97–98, 102 and relational existents, 96–97, 224n. 3 and technologies of violence, 99–100, 102–4 mentioned, 5, 7, 109 noose. See hanging O’Connor, Maeve, 127 O’Shea, Kathleen, 167 pain etymology of term, 161 and hanging, 109–12 and language, 8, 157–62, 225n. 4, 226n. 5 measurement of, 140–41, 225n. 3 McGill-Melzack pain questionnaire, 141 modern medical conception of, 7, 135, 137, 158–59, 225n. 1 problems internal to, 138–41 political conception of, 161–64 premodern conception of, 135– 36 as psychological suffering, 15–16, 39–40 question of, in Campbell evidentiary hearing, 123–29

249 question of, in Davis electrocution, 146–56 rationalization of, 137 See also Davis, Allen Lee; Dodd, Westley Allan; Scarry, Elaine Pascal, Blaise, 136, 158 performative utterances concept of, 23–24 locutionary, illocutionary, and perlocutionary force, 24–25 death sentences as, 25–31 illustrated by game of Hangman, 37–38 infelicitous, 43–44 See also Austin, J. L.; Benveniste, Emile; Bourdieu, Pierre; Butler, Judith; capital punishment; death row; death sentences; executions Phillips, Wendell, 170, 175 physician-assisted suicide. See suicide Pierrepoint, Albert, 82, 223n. 16 See also hanging; hangmen Poulantzas, Nicos criticism of Foucault, 52–54 mentioned, 5, 48, 55, 59, 220n. 1 See also Foucault, Michel; state, liberal; Weber, Max Price, Donald, 154 Provenzano, Thomas, 144, 145 Provenzano v. Moore, 146–56 Rabinow, Paul, 56 race and capital punishment, 166–68, 173–74 Radin, Margaret, 19 Rapaport, Elizabeth, 168, 169 rationalization of condemned body, 107–8, 113–14 of death, 9, 192–97 and disenchantment, 107–8

250 rationalization (continued) formal vs. substantive, 60–62, 92, 107–8 of hanging in England, 62–92 of hanging in U.S., 95, 105–8 of pain, 137 popular resistance to, 92 of state in England, 64–92 Weberian concept of, 55–56 See also capital punishment; executions; Foucault, Michel; hanging; lethal injection; medicalization; Smart, Barry; state, liberal Reay, Donald, 125, 129 Rehnquist, William, 19, 203–4, 215n. 3 Reinhardt, Stephen, 94, 223n. 2 Report of the Committee to Inquire into the Execution of Capital Sentences (1886), 87–89 table of drop lengths, 88 Report of the New York State Commission on Capital Punishment (1888), 105, 198 retribution, 19, 216n. 7 Rey, Roselyne, 160 Reynolds, James, 142 Rock, Paul, 72 Romilly, Samuel, 81 Rose, Nikolas, 184–85, 189, 228n. 3 Royal Commission on Capital Punishment (1953), 90, 108 Ryan, George, 10 Sametz, Lynn, 166 Sarat, Austin on capital trials, 217n. 9 on violence and law, 17–19, 34–35 Sartre, Jean-Paul, 220n. 26 Scalia, Antonin, 202–3, 211, 216n. 7 Scarry, Elaine on aging, 40–41 on analogical verification, 172–73, 205–6, 213 on the body, 163–64

Index on pain, 110, 156–59, 224n. 6 on torture, 161–63 mentioned, 5, 220n. 26 Segastegui, Jeremy, 2 Shaftesbury, earl of, 71 Shaw, Leander dissent in Provenzano v. Moore, 149–56, 225n. 2 Skillern, Doyle, 200–205, 207 Skinner, Thomas, 78–80, 83, 89 Smart, Barry on Weberian concept of rationalization, 54–55 See also Foucault, Michel; rationalization; Weber, Max sovereignty and biopolitics, 206–7 classical doctrine of, 206 dilemmas of, in late liberal state, 9, 171–76, 206–9 execution as possible response, 208–14 Foucault’s criticism of, 48–49 See also executions; Foucault, Michel; globalization; governmentality; liberalism; state, liberal state, liberal authority of, 29–30, 74, 208 as beneficiary of medicalized conception of pain, 143–44 biopolitical transformation of, 186–92 dilemmas of, 3–9 regarding execution of women, 165–77, 226n. 3 regarding law and violence, 216n. 7 regarding legitimacy, 17–21, 171–72 regarding punishment and pain, 213–14 regarding punitive vs. welfare responsibilities, 200–205 regarding sovereignty and its erosion, 206–14

Index state, liberal (continued) dispute between Weber and Foucault, 6, 7, 47–54, 221n. 5 as an effect, 58–59, 184, 189 and globalization, 207–8 governmentalization of, 188–92, 207 historical transformation of, 4–6 purpose of punishment within, 143, 213 rationalization of, in England, 6, 64–92 separation of powers within, 16 Weberian conception of, 50–52, 111, 184, 195 implications of physician-assisted suicide for, 196–97 limitations of, 184–85, 188, 197 See also Foucault, Michel; capital punishment; globalization; governmentality; hanging; law; lethal injection; Locke, John; rationalization; sovereignty; Weber, Max Stephens, Boyd, 116 Stevens, John Paul, 13, 16 Stewart, Potter, 19 Stone, Lawrence, 64 Story, John, 66 Streib, Victor, 166, 167, 168 suicide compared to executions, 116 physician-assisted, 196–97 by waiving right to appeal, 229n. 8 Supreme Court (U.S.) on the constitutionality of capital punishment, 10–11 on cruel executions, 39–40 on Lackey claims, 13–14 on lethal injection, 8 mentioned, 8, 10, 11, 112, 172 See also Callins v. Collins; Furman v. Georgia; Gregg v. Georgia

251 Tencer, Allen, 122 Thomas, Clarence, 14, 45 Tilley, Cory, 145 torture, 161–63 trials, capital, 19–20, 217nn. 9, 13 Tucker, Karla Faye controversy concerning execution of, 165, 170–71, 176, 226nn. 1, 3 gender identity of, 226n. 2 mentioned, 8, 10, 173, 176, 183 Turk, Dennis, 139–41 Turlis, Thomas, 77 Turner, Bernard, 78–80, 83, 89 Tyburn’s Triple Tree, 6, 66–70, 74–81, 222n. 10 Tyma, Stephen, 226n. 5 Washington State capital statutes, 22, 119 death row, 41–43 penitentiary, 1–2 protocol for hanging, 104–5, 115–29 Weber, Max on disenchantment, 61, 92 on law, 64 on modern state, 50–52, 64 and its legitimacy, 231n. 17 on passive democratization, 92 on rationalization, 55–58, 222nn. 6, 8 formal vs. substantive, 60–62 low level of, in England, 74 mentioned, 4, 5, 6, 47, 48, 65, 72, 73, 95, 97, 185 Weissberg, Robert, 176–77, 227n. 4 Wellhausen, Steve, 155 Wells, Thomas, 223n. 15 Wikswo, John, 154 Wittgenstein, Ludwig, 159 Women. See gender Wood, Tana, 118, 124, 126, 132 Wright, J. Skelly, 202 Zimring, Franklin, 231n. 15 Zumwalt, Ross, 115, 116–17

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