Death, Denial, Discourse: On the Forms and Functions of American Capital Punishment
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The death penalty in America today is a peculiar institution for which we lack an adequate sociological account. The institutional arrangements that have grown up there over the last 40 years appear to put the state, law and lethal violence into a new and strange relation. Yet, our standard explanations are borrowed from historical accounts that were generated to explain the role of capital punishment several centuries ago. We have not yet developed analyses that can explain the distinctive forms and functions that define the contemporary institution. The theoretical frameworks that predominate in the sociology of punishment have little to tell us about the particulars of contemporary capital punishment. When sociologists write about capital punishment, they mostly draw on the work of historians such as Vic Gatrell or Douglas Hay, who write about the eighteenth and nineteenth centuries, or else upon the theoretical ideas of Emile Durkheim, which associate capital punishment with pre-modern penal regimes. Above all, they draw upon the work of Michel Foucault, which, as I will argue, is singularly ill fitted to understanding the modern American institution. The effect of this theoretical orientation is to produce an implicit conception of contemporary capital punishment (where it still exists in the developed world) as a vestigial phenomenon. The modern death penalty is regarded as a relic of an earlier age, a near-extinct practice, badly adapted to its environment, teetering on the edge of extinction. For some American commentators, this anachronistic, residual, status is what accounts for the apparent dysfunctions and irrationalities of the institution. If capital punishment persists in a few modern democratic societies, it does so as a result of some kind of inertia or lag effect. It is a product of the past, not the present, and its destiny is soon to disappear. That this view fits comfortably with the normative sentiments of most sociologists ensures that its underlying assumptions are not too often questioned. The consequence of this neglect is that a number of explanatory puzzles await our attention. Look, for example, at the ‘violence’ of American capital punishment. It is real enough, and lethal. Individuals are put to death, killed by judicial order. An execution must count as a pretty serious form of violence. But the death penalty's form, its techniques, and its performative characteristics tend to work against that connotation. The death penalty is administered in ways that seek to deny its violence, to disguise its force, and to efface its physicality. Executions are represented as painless medical procedures. Their bodily aspects are minimized, their intrinsic violence obscured. But even if we insist, against the grain of the institution, on exposing the execution's violence (and opponents insist that even the lethal injection entails severe physical pain which is all the worse for being invisible—see Hill v. McDonough 2006), we have to admit that this violence is actually a minor part of what one might call the practice of capital punishment. For the most part, American capital punishment is not about executions (which are now relatively rare—more Americans are killed each year by lightning). It is about mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas, imposing sentences, and rehearing cases. It is about threats rather than deeds, anticipated deaths rather than actual executions. What gets performed, for the most part, is discourse and debate. From the point of view of the system, the discreet violence of the execution is a necessary underpinning, but not the thing itself. Capital punishment is like a credit system with a high volume of circulating value underwritten by a gold standard that is only occasionally cashed out. Look, as well, at ‘the state’ in the capital punishment process. This is another defining element that is somehow hidden beneath the surface of things. If one attends to events, to spoken and written discourse, even to symbols and rhetoric, it turns out that ‘the state’ (in the proper, European sense of the term) is virtually absent. One sees, instead, the repeated invocation of 'the law' and of ‘the people’. Capital punishment is all about the law, the Constitution and the jury, or else it is about the electorate, public opinion, and democracy. When it comes to judicial executions, America's killing state is nowhere to be seen. And what about the institution's social function? Can we suppose that the American death penalty is undertaken as an instrument of crime control and social ordering? Is it a means of reducing crime, upholding law, and keeping Americans orderly? That seems unlikely. Even if one were to accept, for the sake of argument, that penal institutions play a substantial role in the reproduction of social order, it is hard to believe that a penalty which affects so few people could have a major structural impact of that kind. Only a tiny minority of homicide defendants ever face capital charges and only about 120 are now sentenced to death each year. Compared to the tens of millions of offenders who are sentenced to imprisonment or penal supervision each year, capital punishment's impact on social order is liable to be vanishingly small. These, it seems to me, are paradoxes that should invite sociological attention.
Source Publication
Crime, Social Control and Human Rights: From Moral Panis to States of Denial: Essays in Honour of Stanley Cohen
Source Editors/Authors
David Downes, Paul Rock, Christine Chinkin, Conor Gearty
Publication Date
2007
Recommended Citation
Garland, David W., "Death, Denial, Discourse: On the Forms and Functions of American Capital Punishment" (2007). Faculty Chapters. 662.
https://gretchen.law.nyu.edu/fac-chapt/662
