Giving full satisfaction to popular sadism always risked undercutting public support, but now politicians feel comfortable calling for a return to harsher methods.
States that kill tell us, in their scientific-technical language, that the death penalty is an unfortunate but strictly necessary activity, always used as a last resort and always restrained by mercy. The precise method of killing is itself a matter of pained, moral exactitude. The question is always how to deter as much brutality as possible, with as little brutality as possible.
So, a question: if you wrap a ligature around someone’s throat and tighten it until it breaks their neck or they choke to death, what is the deterrent effect of this compared with, say, tying them by the neck to a crane and then jerking them violently upward? How many fewer murderers and rapists would there be if we injected convicts with poison, as opposed to gassing or electrocuting them? For if you take states at their word, the sheer variation in both the use and method of the death penalty over time and place necessarily gives rise to such mind-boggling calculations.
For a few decades, this controversy has been moot in the United States. Those states in the union that operated the death penalty had abandoned the traditionally harsher methods of killing, such as electrocution or gassing. The long, agonising deaths associated with these methods had been replaced by superficially serene ones, effected by the seemingly precise method of poisonous injections. Now, as the availability and effectiveness of these drugs is in question, 6 states are attempting to bypass controversy by bringing back the firing squad, the gas chamber or the electric chair.
There are certain ironies here. Electrocution was itself once considered the gentle, civilised method of killing in the US. After centuries of hanging people in public squares, the American state was centralising and consolidating its power. Its ability to contain violent disobedience was expanding dramatically. By and large, it was less threatened by criminal disobedience than by the potential for unruliness among witnesses to such spectacles. It began to use the death penalty less, and in more confined settings, with fewer witnesses.
This did not mean that the element of sadism, which is essential to the social meaning of the death penalty, had been expunged. As a ritual, it effectively harnesses the desire to see satisfaction in pain and humiliation, and as such legitimises the state’s ultimate authority. That is why witness must be made, especially by the grieving relatives of a murder victim, for whom the killing of the convict is apparently the only route to “closure”.
The death penalty is linked to a wider array of sadistic punishment practices – “life-trashing” sentences, and “shame” penalties – which in the US are part of the management of a racial order, in which black people are seen as the potential nemesis of civilisation itself. The merest hint of a breach of their symbolic status has often been sufficient to produce an outburst of repressive violence. In this respect, it is notable that public killings mainly – although far from exclusively – persisted in the southern states, where political authority was weaker and more decentralised, and where racial terror was the dominant means of political control. Yet, while the US started to shift toward less spectacular forms of execution, they were not less public, not less symbolic, and certainly not less racially charged, as a result – until an effective moratorium on the penalty which lasted from 1960 to 1976.
It is telling, perhaps, that the basis of the current recourse to more traditionally brutal forms is an “economic” rationale – what can be done at least cost to the state, avoiding expensive legal challenges. The prosecution of offenders and the pursuit of the death penalty is always a costly and time-consuming process. This is one reason why, as Sister Helen Prejean wrote, African Americans and Hispanics not only do not expect the district attorney’s office to pursue the death penalty when a loved one is killed, but rarely expect even a prosecution.
However, the death penalty today is precisely grounded in an “economic” rationality. The end of the supreme court’s ban on it in 1976 corresponded to the beginnings of a political shift in the direction of neoliberalism. The neoliberals, despite their anti-statist rhetoric, were in fact advocates of a strong, authoritarian state, particularly in order to protect property rights and curb “market bypassing”. Of course, in its application it continued to be “selective” in favour of killing African American suspects. However, the legitimacy of state killing for some was at least partially secured by the introduction of the lethal injection in 1982, which was vaunted as a humane means of death. Subsequently, Clinton’s Antiterrorism and Effective Death Penalty Act enabled a drastic escalation in the use of the death penalty.
Yet, while American states – above all, Texas – are killing more people at a faster rate, supporters of the death penalty remain unhappy. It is precisely this “civilising” process – the slow, premeditated legal planning that must go into killing – that outrages them. The government is fighting evil, with one hand tied behind its back: let the forces of order do their work without hindrance and put an end to the chaos. Once the discussion is cast in terms of such moral absolutes, the evidence is that any potential wider costs of the death penalty are as superfluous as “collateral damage” in a war. Unfortunate, but of no real interest. The libidinal energies invested in killing overwhelm any such objections.
This is the bind that the American state has always been in over the death penalty. The regular application of lethal force serves a vital political purpose; but giving full satisfaction to popular sadism has always risked undercutting broad public support for it. If American politicians are now unembarrassed to call for a return to harsher methods of killing, this signals that the bind is loosening and that politics is tilting in favour of a renewed authoritarian statism – inevitably mandated by racism.
“Deterrence” in this sense is entirely symbolic; what is deterred by the binding of popular sadism to state bureaucratic processes is any questioning of the state’s claim to the final say over life and death.