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Make them squirm

Bedau1 goes on to show that the death penalty is qualitatively different from other penalties such as life imprisonment, no matter how mitigated the indignity of the execution, because the death penalty is utterly irrevocable and irreparable and it is more severe than life imprisonment because all experience of life, even the most humble that could give meaning to a prisoner’s life, is taken away.

It is different in another important way: it is not strictly speaking a punishment inflicted in real time. As a logician’s joke goes: “When I am dead, I am not. When I am, I am not dead. Death never happens to me. (Ergo, I am immortal.)” But there is a serious point here. The real pain—and when does punishment not consist of pain?—in the sentence of death occurs in anticipation of the actual punishment, that is, while the convict is alive and can feel (especially, as we have progressively sought in modern procedures to minimize actual pain suffered at the exact point of death). We can really punish only living people. Torture is more rationally spoken of as “punishment” (unless our intent is mainly to cause pain to bereaved survivors or the penalty serves largely as outlet for our expressive needs and has little to do with anything like honoring the autonomy of a wrongdoer or giving them what they asked for). Granting someone the status of non-existence must really be motivated by other considerations than the mere causing of extreme pain to the grantee. There are well-known and better ways to do that. The grant must be motivated by either a disgust with a now de-subjectified object that failed us in an especially grievous way (e.g., a car that has failed us one too many times, or at one critical time, when we relied upon it) or the wish to be done with something that we have no use for and would like to clear from the path of our lives (e.g., items from the garage or basement that even charities do not want). That or it really is, in the final analysis, the only gesture adequate to the task of expressing our feelings about the crime—feelings that we dare not suppress, we feel, for our own psychic health. Thus in some human environments the executed are “humiliated” even in death through corpse mutilation, by not being buried in consecrated ground, or buried at all, etc. The suggestion is that we kill really bad criminals by lethal injection, electrocution, gassing, hanging, or firing squad because—at this time and place—that is where our squeamishness about the raw expression of vengeance draws the line… (The situation recalls the line drawn at the public expression of unbridled (or unbridaled) sexuality.)

Imagine this: upon being sentenced to death the procedure would promise us no sure date or time for our death. We might die at 8:05 am on our 68th birthday, tonight while sleeping, in the next five minutes or never at all in a life time of incarceration. We would simply not know when, where or how—and perhaps not even our incarcerators would know. Some random event generator would trigger it. But we would live each moment under the cloud of having been sentenced to death, and let’s say further—to distinguish the situation from the one we are all in—that we were assured that our death would very likely not be a natural one. One more thing: we are assured as well that whenever or however it happens, it would be as quick and painless as possible. One moment, out of the blue, we are dead.

The point would be to rob execution of its sting, to sanitize it of any cause for dread—in anticipation or in the act. Yes, there would still be something to dread in anticipation but it would be abstract, bloodless and only slightly less routine and inevitable than the natural process of aging (and how sharply does that worry cramp our style?). We sometimes wish for ourselves or others that when we die we do so quietly in our sleep. We think this the paradigm of peaceful ways to go. The ideal would be to make execution similar to this as well. Only one thing again would distinguish it from what we wish for us all: it would very likely be premature.

The question is: would we have any use for such a “punishment”?

To be sure, it would remain an undesirable thing to do to someone who grievously offended the community but would minimize the semblance of the rage we associate with vengeance. It would merely pull the rug out from under the normal expectation we have for a life of normal duration—doom would hang like a blade over our necks suspended by the whim of a child but neither the blade nor the child would be visible to us. As such, it could serve the same lesson we now purport to teach the criminal (and imprint on the community at large): that when someone commits an act so wrong, we must honor them with the responsibility because we take them to be rational agents who, as Kant would say, freely chose this as their fate. There is really no call to get emotionally worked up about it anymore than we might be at getting the result from a tool we were warned to expect when blatantly misused. What’s done is done and what happens as a consequence is “par for the course”.

I can imagine a society of rational agents for whom this would be the end of the matter.

I don’t think it describes us, however. I think we want to see suffering, anguish, or at least imagine the writhing of the convicted alone at night on his cot for years before his demise at the thought of what will be lost forever. We want him to feel to the bottom of his being the despair of those who die slowly knowing they themselves willfully instigated the chain of events.

We would never admit publicly to a certain glee at stories of people’s heads exploding in flames or bowels loosening or bladders draining on repeated applications of procedures we are assured would be as painless as possible.

I believe, for someone particularly close to the victim of a capital crime, when something like that doesn’t happen at an execution—when the whole thing is carried off with anti-climactic efficiency—there can be real disappointment. It is not enough for the murderer to simply enjoy a scheduled death and escape further torture. Certainly, the aggrieved survivor shall not so easily be acquitted of his or her own pain.

And I suspect the same for very many of the rest of us as well.

If we are embarrassed by this naked revel in suffering, and if the trappings of justice were invented to deal with just such embarrassment (much as the ritual of the wedding and the institution of marriage were as communally sanctioned fronts for private acts of lust), it bespeaks of the capacity to transcend bastardized animal impulses—but only a capacity, not any great ambition. Nor is any animal a bastard.

We are not animals. We are an embarrassment.

…The virtue of a system of execution by an aggrieved survivor of the victim is that the embarrassment is explicit—the field for moral chicanery minified—while still paying homage to what it means to be human and not yet fully debarbarized.


1. Hugo Adam Bedau, “A Matter of Life and Death” in Crime and Punishment: Philosophic Explorations, Michael J. Gorr and Sterling Harwood, eds., (Boston and London: Jones and Bartlett, 1995), p. 503. [From Death is Different: Studies in Morality, Law, and Politics of Capital Punishment, (Boston: Northeastern University Press, 1987).]

Posted by luno in capital punishment (Wednesday August 17, 2005 at 1:16 pm)

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