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The Executable Body and the Vitality of the Death Penalty

The Death Penalty

Laura Dravland

The Executable Body and the Vitality of the Death Penalty

Laura Dravland
To punish is the most difficult thing there is. A society such as our needs to question every
aspect of punishment as it is practiced everywhere.1
The execution of Reginald Perkins drew little scrutiny. Having lived the past 9 years of
his life in the Polunsky Unit of Texas Correctional Institutions Division in Livingston, Perkins
was virtually unknown in the media. His case was not extraordinary in any way that would
set his plea for exoneration apart from the more than seventy-five others like him on Texas
death row at the time.2 Having strangled his 64-year-old step-mother, robbing her of her
wedding ring in 2000, he was sentenced to death by lethal injection. After numerous state
and federal habeas corpus petitions, and eight years on death row, justice was carried out
at 6:24 pm on January 22, 2009. At the age of 53, Perkins became the 5 th person executed
by the state of Texas in 2009.3
It would be absurd to argue that Perkins violent history was anything but horrendous. He
had an extensive and violent criminal past, having been paroled in 2000 after serving just 8
years of concurrent life sentences for rape of a minor, attempted rape of a minor and gross
sexual imposition. He was linked to three murders in the early 1980s and has recently been
tied to two 1991 stranglings in Fort Worth, Texas.
On November 6, 2009, at age 32, Khristian Oliver became the 18 th person executed
that year by the state of Texas. However, unlike that of Perkins, Olivers case came to the
attention of Human Rights groups worldwide when news came to light that the jurists were
unduly influenced by materials brought into the jury room. Although most juries are not
even allowed to consult their own personal notes taken during a trial, the jury in Olivers
case consulted a King James version of the Bible when trying to make the decision between
life and death. The Guardian describes the deliberations: A clutch of jurors huddled in the
corner with one reading aloud from the Book of Numbers: The murderer shall surely be put
to death and The revenger of blood himself shall slay the murderer.4 After mounting
numerous appeals, Olivers last ditch effort, an appeal to the US Court of Appeals for the
Fifth Division in 2008, affirmed the fact that the use of the bible might have caused
impartiality, but stressed the importance of a high deferential standard for lower court
decisions5. The Supreme Court denied further appeal.
One can argue that Olivers case is an anomaly, a travesty,6 a violation of
fundamental principles of justice. Olivers crime was not unlike other capital crimes, though
perhaps less heinous than many, including that of Perkins. Having unlawfully entering a
house to burglarize it, the homeowner came home shooting Olivers accomplice in the leg
before Oliver shot and killed him, before beating him with the butt of his rifle.
However, Olivers case is not anomaly. The cases of Perkins and Oliver have many
more similarities than differences. In fact, across death row, the cases are eerily alike.
Marred with judicial errors, with blatant partiality, with arbitrary decision-making, or with
simple unfairness or not. What makes the cases of these men (and women) similar is that
they are simply not extraordinary.
The minute details that set unfair death sentences apart from fair death
sentences are not only inconsequential, but insignificant. In 2009, it seems trite to argue
the death penalty as a due process issue, or along the lines of deterrence, incapacitation,
or even retribution. Formally strong arguments, these have become almost superfluous as
the death penalty has taken on a life of its own. As a punishment, the death penalty is not
only more severe, but is qualitatively different and thus transcends the normal

1 Michel Foucault, To punish, 464

2 Texas web site
3 Texas web site
4 Chris McGreal, US Authorites Urged to Overturn Death Sentence after Jury
Consulted Bible (Oct 15, 2009) The Guardian. Guardian.co.uk
5 Cite this
6 Guardian

boundaries of criminal justice. 7 As Bedau notes, because death is different, it is not an

issue that can be resolved by looking at the facts: it is essentially a moral issue. 8 Indeed,
the death penalty must be considered through a normative analysis that requires us to look
at and either accept or reject the reasons behind our choice of punishment.
How has death as a form of punishment retained such vitality in the United States, at
a time when every other Western country has long abolished it? This article explores the
robustness of the the executable body by depriving it of the aegis of traditional means of
justification. The executable body, at its most basic, plays a crucial role in American political
and social culture and has uses far beyond those of crime and punishment. The
executable body is designated as a site of some of our most powerful emotions and
maintains the vigour of the death penalty through its efficacy.
Part I explores the traditional justifications of the death penalty, including that of
retribution which has served as the most potent justification for the death penalty in recent
years. Part II looks at three possible uses of the executable body - the executable body as
sacrifice, the executable body as the infallible state, and the executable body as the borders
of the nation and argues that these uses turn the executed body into a site for collective
emotion. Part III begins a normative analysis of the death penalty that considers
Part I:
A society, as it has been extensively argued9, requires both the threat and the
practice of punishment to maintain order and protect individual rights. According to H.L.A.
Hart10, a punishment of a legitimate criminal justice system will have five components,
paraphrased as follows: (1) it must be painful or otherwise disagreeable, (2) it must be in
response to an unlawful act; (3) it must be imposed on an offender for the unlawful act; (4) it
must be conducted by someone other than the guilty party; and (5) it must be compelled
and applied by an authority of the legal system11. These basic requirements demarcate
other physical acts of aggression, particularly during warfare, during which agents of the
state engage in violence against one another, from what is termed punishment.
Punishing then, is not just an act, but is part of the legitimate institution of punishment.
Hart12 adds that an effective punishment must communication societys moral
condemnation, while aiming to remain neutral among competing conceptions of the good. 13
In liberal societies, choosing a means of punishment entails deciding what good should be
pursued. Often, however, political life is a site of fundamentally conflicting values. 14
Instead of using unitary justifications, a liberal society must use a hybrid of justificatory
theories that incorporate one or more ultimate goal in an institution of punishment.
Harts elements define what makes an infliction of harm a punishment. If we are
willing to assume that the intentional infliction of suffering [or pain] is an intrinsically
wrongful action15, it stands to reason that punishment requires some form of justification. If
we can not justify a system of punishment, the justice system will not be seen as
legitimate.16

7 Zimrinig, 139
8 Bedau
9 See, for example, Ernest van den Haag, The Purpose of Punishment in hjkhjhkjhj
( ) 53.
10 Hart, H.L.A. Punishment and Responsibility: Essays in the Philosophy of Law.
(Oxford: Claredon Press, 1968) 4. [Hart, Punishment]
11 ibid.
12 Hart, H.L.A. Aims [Hart, Aims]
13 Nussbaum 1 359
14 ibid.
15 Hart, Responsibility
16 Hart, Responsibility

Historically, theorists pointed to four theories of punishment: deterrence,

incapacitation, rehabilitation and retribution. According to Hart, these are not theories as
such, but are moral arguments as to what justifies punishment 17.
The death penalty in the United States is often justified by a hybrid of justificatory
theories, mainly deterrence and retribution. Although the death penalty does, indeed,
incapacitate offenders totally and permanently18, leaving them unable to reoffend, most
would concede that a life sentence without parole would serve the same purpose. Public
support for rehabilitation has long been waning, in part because no method has yet been
seen as effective19. In any event, the death penalty would be hard pressed to be justified by
its rehabilitative qualities.
Deterrence as justification for punishment is attributed the Jeremy Bentham (1781),
and traced to Beccaria (1764). It is a utilitarian approach that sees punishment as moral if
it produces more good utility than disutility. According to Bentham, all punishment in itself
is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be
admitted in as far as it promises to exclude some greater evil20 A punishment justified by
the deterrence theory must be able to provide a future good of reduced crime.
Van den Haag argues that the question of deterrence should not be whether it deters
all criminals, but whether it deter enough crimes, compared to a lesser punishment? 21 The
deterrence justification, however, assumes that those who commit these crimes weight the
pros and cons of the acts under consideration.22 David Andersons 18348 study of hjkhsdjk,
suggests that 89 percent of the most violent criminals committed the offence thinking either
that the risk of apprehension was low or non-existent, or did not consider the consequences
at all.23 More on this...
Retribution is a justification often attributed to Kants moral philosophy. 24 Kant argued
that justifications - such as deterrence - use criminals as a means to an end which, in his
view, is immoral. Kant argues that punishment must always be inflicted upon [the offender]
only because he has committed a crime.25 Thus, the central premise of retribution is that
the guilty deserve to be punished for their unlawful act.26 As a non-consequentialist
justification for punishment, retribution does not seek any future good, but is an
intrinsically appropriate (because deserved) response to past crimes. 27 Retribution is
justified as either grounded in the natural desire for retaliation or because [o]ne who
breaks the law...takes an unfair advantage for herself over those who obey it. 28
The retributivist justification for the death penalty is flawed on several grounds. The
concept of lex talionis, or an eye for an eye, on which retribution is based, says that an
offender should experience a proportional punishment to that which he inflicted on his
victim. However, most crimes do not have a punishment that is morally permissible and
proportionate. Finkelstein argues that if this were the case, a justice system could only

17 Hart, Responsibility
18 Van den Haag, Ernest and John Conrad. The Death Penalty: A Debate. ( 1983)
19 van den Haag, supra at 53.
20 Bentham, Jeremy.
21 Van den Haag, supra at 57.
22 Anderson, David A. The Deterrence Hypothesis and Picking Pockets at the
Pickpockets Hanging (2002) 4 American Law and Economics Review 2 at 295.
[Anderson].
23 Anderson, supra note 16 at 107-108.
24 Kant
25 Kant, 331
26 Duff, R.A., Punishment, in Hugh Folette, ed. The Oxford Handbook of Practical Ethics
(New York: Oxford University Press, 2003) 331-357 at 340 [Duff].

27 Duff, supra note at 340.

28 Duff, supra note at 341.

punish three offences: false imprisonment, theft, and murder.29 If, on the other hand, the
retributivist argues that we should give those punishments that we consider acceptable to
offender in a way proportional to their offence, we would not be able to justify allowing
death as a punishment on those lines alone.
Kant argues for a retributivist theory based on moral equivalence, meaning that the
offender should suffer in a different, but morally similar way to the harm he inflicted. This is
because a fine for theft means little to the rich man, but injured honour might be suitable
in such a case. Again, however, this approach can not determine which punishments will be
allowed in a certain society. How can we know which penalty is the most severe? Is torture
more severe or is death? Finkelstein argues that the retributivists approach cannot
reconcile this question.
Finkelstein argues that there is a moral side constraint in this discussion of
retribution which is, even if a murderer deserves to die, is it not possible to also argue that
the death penalty is not a morally permissible penalty for the State or for society to
inflict?30 On these lines, it is argued that the death penalty violates human dignity, and
devalues human life. Others argue that the state can not make the life and death decisions
that should be left to divine knowledge.
It is also quite possible that the practical application of retribution is not clearly
distinguishable from revenge. Indeed, retribution and vengeance do have many similar
qualities. Like vengeance, retribution is seen as having immediate appeal and underived
authority.31 Both come out of natural response of the desire to get even. But as Sarat
argues, the difference between retribution and revenge only holds up if we accept the
distinctions between public versus private, impersonal versus personal, general versus
specific.32 These distinctions, however, are difficult to uphold in the realities of modern
society, where the personal has become political and individual crimes speak to the entire
nation.
It is this non-distinction that I attend to in Part II. In considering the uses of the
executable body, it is difficult to see the line where retribution ends and vengeance creeps
in.
Part II: The Uses of the Executable Body
There is no law that is not inscribed on bodies. Every law has a hold on
the body. Every power, including the power of law, is written first of all on
the backs of its subjects.
Michel de Certeau, The Practice of Everyday Life,
139-140.33
The human body is simultaneously at an individual and a social level as an agent as
well as object in the social world.34 Body theory looks at the meaning of embodiment and
lived realities in relation to contemporary theories. It questions the role of social theory at
the point at which it intersects with the physicality of embodiment. It probes the meaning of

29 Finkelstein 13.
30 Finkelstein 15
31 Mackie, J.L. Morality and the Retributive Emotions (1982) 1 Crim. Just.

Ethics 3 at 4.

32 Austin Sarat, The Return of Revenge in Aladjem, supra note at 43.

33 Michel de Certeau, The Practice of Everyday Life, trans. by Steven Randell
(Berkeley: University of California Press, 1988) 139-140 cited in Austin Sarat, Killing
Me Softly: Capital Punishment and the Technologies for Taking Life (Sterling, VA:
Pluto Press, 1999) at
[Sarat, Killing].
34 M.L. Lyon & J.M. Barbalet, Societys Body: Emotion and the Somatization of
Social Theory in Thomas J. Csordas, ed. Embodiment and Experience: The
Existential Ground of Culture and Self (Cambridge :Cambridge University Press,
1994) 63.

difference in lived experiences of embodiment, looking closely at the meaning of

embodiment at the margins. Put another way, body theory seeks to discover the
relationship between society and the physical body.
The relationship between the law and the body has been analyzed by Alan Hyde. In
Bodies of Law, he argues that the legal subject musttolerate or consent to some fairly
massive social uses of the body, which law facilitates by constructing that body so as to
permit such social use.35 Likewise, Foucault argues that there exists a body politic which is
a set of material elements and techniques that serve as weapons, relays, communication
routes and supports for the power and knowledge relations that invest human bodies and
subjugate them by turning them into objects of knowledge.36
The theories of Hyde and Foucault demonstrate the necessity of a theory of
punishment that incorporates an assessment of embodiment. When it comes to the death
penalty, theorizing the body is especially pertinent as it renders as punishment the ultimate
control and power over the body while acting as a source of the knowledge and power of the
state.
The executable body has particular uses in the drama of the death penalty. In a
discussion of these uses, this section seeks to denaturalize the punishment to expose its
foundations.
a. The Executable Body as the Borders of the Nation
In a chaos of shifting impressions, each of us constructs a stable world in
which objects have recognisable shapes, are located in depth, and have
permanence. In perceiving we are building, taking some cues and rejecting
others. The most acceptable cues are those which fit most easily into the
pattern that is being built up. 37
- Mary Douglas, from Purity and Danger
The death penalty is instrumental in creating, maintaining and policing the border of
the precarious American identity.
Emile Durkheim argues that through punishment, cultural boundaries are negotiated
and solidarity between members of society is created through disidentification with those
perceived as other.38 The laws of a society are not isolated in discreet units, he argues,
but are arranged systematically, creating in each a system of law that is connected as an
ensemble with has its own unity and individuality.39 Law is created by and is a reification of
a societys collective morality.40 A system of punishment is thus a social fact 41 that reveals
much about a societys morality.
Punishment can be seen as a surgical procedure to heal the body politic. 42
Punishing the body is a means by which society can discover kinship by conforming

35 Alan Hyde, Bodies of Law (Princeton, NJ: Princeton University Press, 1997) 259
[Hyde].
36 Discipline and Punish 29
37 Douglas, Mary. (1966) Purity and Danger. Routledge Classic Edition (2002) New York,
first published by Routledge & Kegan Paul. (how to do original pub date and reprint?) 45.
[Douglas].

38 Sarat, death penalty as, 10.

39 Lukes, Steven and Andrew Scull. Durkheim and the Law. (Oxford: Martin
Robertson & Co. Ltd., 1985) 4.
40 Durkheim, Emile. The Division of Labour. 33
41 See Durkheims The Rules of Sociological Method. (London: Macmillan 1982) at
ch.1. See also p. 43: Durkheims analysis of legal rules as constraint which limit
individual agency. Laws, he notes, command: the individual finds himself in the
presence of a force which dominates him and to which he must bow.
42 Tyler, 130

otherness and affirm hierarchies of central versus marginal individuals. 43 According to

Garland, punishment defines the self by policing its failures and pathologies and defining
exactly what one is expected to be.44
The death penalty is one of the most efficient ways of confirming national unity in the
face of perceived threat. It assures some of [our] more cherished categories of selfinterpretation45 by eliminating those who threaten the penetrable border. After 9/11,
Through the death penalty, differences between self/other, black/white, and
male/female, are exaggerated in order to create certainty out of chaos. Through the
metaphor of dirt, Mary Douglas examines the creation of boundaries through the elimination
of inappropriate elements46, the by-products of the creation of order.47 Inappropriate
elements are individuals who have developed some wrong condition or simply crossed
some line which should not have been crossed and this displacement unleashes danger for
someone48. Martha Duncan agrees that filth is an appropriate metaphor for criminals
who likewise evoke our simultaneous hate and love49 Comparing filth and evil has been
seen throughout literary history in works by Shakespeare and Dostoyevsky. 50 As Charles Duff
noted ironically, the trivial aspect of state killing is the elimination of the unwanted
individual.51 Creating unity is difficult; getting rid of the excess is quick and produces clear
cut results.
Dehumanization:
The process of dehumanization is built into the death penalty through what Haney
calls the mechanisms of moral disengagement.52 The structure of the trial, including pretrial voir dire jury selection, and the admittance of victim statements at sentencing ensure
the dehumanization of the offender.
Mitigating evidence is presented too late in a capital trial to give jurors a chance to
humanize him. Often, the difference between life and death rests in a jurors ability to relate
to the accused,53 an ability seriously impaired by the bifurcated structure of a capital case.
In Lockett v. Ohio,54 the U.S. Supreme Court ruled that the Eighth and Fourteenth
Amendments requires that the sentence, in all but the rarest of capital case, not be
precluded from considering as a mitigating factor, any aspect of a defendants character or
record and any of the circumstances of the offence that the defendant proffers as a basis for
a sentence less than death.55 The Court thus recognized the need to counteract the
potentially damaging evidence of the prosecution with mitigating evidence in favour of the
accused. Mitigating evidence, presented in the sentencing phase, was meant to level the
playing field so that jurors could make a decision based on the facts as presented. However,
in most cases, weeks and even months of trail have delayed the potential impact of the
mitigating evidence. The defences job of portraying the defendant as a viable human being
becomes an impossible uphill battle.56

43 Slocum in Tyler 143

44 Garland, in Sarat, Capital Punishment as Legal
45 Connolly in Tyler 143
46 Douglas, 44.
47 Ibid.
48 Douglas 140.
49 Duncan 729
50 Dunca, see 728
51 Duff, Charles, A Handbook on Hanging (New York: New York Review Books, 2001) 5.
52 Haney, Craig, Violence and the Capital Jury: Mechanisms of Moral Disengagement and
the Impulse to Condemn to Death. 49 Stan. L. Rev. 1447 1996-1997. 1450. [Haney].

53
54
55
56

Cite this
438 U.S. 586 (1978)
At para.
Haney, supra note at 1455

Jury selection in capital cases is done in such a way as to make a jury of ones
peers, anything but. After Ring v Arizona,57 a jury rather than a judge, must make the
decision as to whether aggravating circumstances elevate a punishment to death in all
capital cases. The Court in Ring argued that [i]f a state makes an increase in a defendants
authorized punishment contingent on the finding of a fact, that fact...must be found by a
jury beyond a reasonable doubt.58 As the jury is seen to represent the perspective of the
community at large, in theory the jurors would best represent the standards of decency of
that public.
However, in practice, the process of jury selection ensures that a jury will be least
favourable to a defendant. To be assigned to a capital jury, a potential juror must be death
qualified. This is determined by the Witt standard59 that says, if a jurors beliefs would
prevent or substantially impair the performance of his duties as a juror, it is grounds for
dismissal for cause.60 This standard eliminates up to a third of the population.
A jury differentiated on grounds of death qualification is differentiated on many
other grounds as well.61 Butler argues that death qualified jurors are demographically
unique: They are more likely to be male, Caucasian, moderately well-educated, politically
conservative, Catholic or Protestant and middle class.62 They are also dispositionally
unique, in that they are more likely to have a high belief in a just world, espouse legal
authoritarian beliefs, exhibit an internal locus of control and have a low need for
cognition.63 Lastly, Butler argues taht death qualified jurors are attitudinally-unique in
that they are more likely to privilege aggravating circumstances over mitigating factors, to
be sceptical of mental illness defences, to be more influenced by the trials publicity, and to
believe in an infallible criminal justice system.64 In addition, Dillehay and Sandys65 found
that 28% of death qualified potential jurors would impose the death sentence in any capital
case and that 36% of these potential jurors had views so in favour of the death penalty that
they would be unable to be impartial in a capital trial. 66 The process of selecting death
qualified jurors only exacerbates the uniqueness of the chosen jury, potentially focusing
jurors minds away from the presumption of innocence and towards a willingness to impose
the death penalty.67 Why, a potential juror might ask himself, would the judge ask about
whether I would impose the death penalty if it was not relevant to this particular case?
Victim impact statements are another potential site for the dehumanization of the
defendant. Martha Nussbaum argues that victim statements merely are a site for revenge. 68
Although, as van den Haag notes [p]unishment- regardless of the motivation is not
intended to revenge, offset, or compensate for the victims suffering, or to be measured by
it69 the U.S. Supreme Court allowed the presentation of victim impact statements in Payne
v. Tennessee70 just four years after ruling them unconstitutional in capital cases in Booth v.
Maryland.71 The Court argued that the prosecution should have an opportunity to counter

57 536 U.S. 584 (2002)

58 Ring at para.
59 Wainwright v. Witt:
60 P. 852
61 Brooke Butler,
62 Butler at 134
63 Butler 134
64 Butler, 134.
65 1996
66 Dillehay and Sandys (1996).
67 Brooke Bulter, The Role of Death Qualification in Venirepersons Susceptibility to
Victim Impact Statements (2008) 14(2) Psychology, Crime & Law 133 at 134.
68 Nussbaum phi and public affairs article.
69 Van den Haag
70 Payne v. Tennessee 501 U.S. 808, 825-27 (1991) at .
71 Booth v. Maryland 482 U.S. 496, 502-3 (1987) at .

the defences ability to cast the defendant in a positive light. A jury, the Court reasoned,
could then assess the harm the defendant actually caused. Two very similar murders may
cause divergent levels of harm.
In Gardner v. Florida, the U.S. Supreme Court held that sentences in capital cases had
to be based on reason rather than caprice and emotion.72 However, victims rights groups
argue that victim statements allow the jury to feel necessary amount of compassion and
give a voice to those who are traditionally silenced in a criminal trial. 73 However, jurors easily
feel empathy and compassion for those who are similar to themselves74 as victims usually
are.
In theory, a victim statement could provide additional relevant information, increase
the proportionality of sentences and provide an opportunity to meet the needs of victims. 75
But victim statements are often uni-dimensional, merely restating the narrative of
victimization. As a mechanism of moral disengagement, these statements distort the
human context and reframe the decisions they are called on to make in ways that rob
them of their moral tenor.76 Instead, the statements reflect unreasoned, unreflective
emotion that cannot be place in any usable perspective and simply work to overwhelm jury
with feelings77, ensuring that the jury is unable to see the defendant as anything less than a
monster. This structural aggravation78 promotes the recognition of the defendant as
inhuman, and sends a message to the jurors that any attempt to humanize him is
intolerable. In doing so, the jurors are left to judge something other than crimes, namely
the soul of the criminal.79 In this way, a sentence does not simply mean that one is guilty
and deserving of punishment, but is a judgement and declaration of what is, and what is not
acceptable.80
Although narrative shapes all legal discourse81 conventions govern not only which
narratives can be heard, but how stories are told, including who may tell them, how much
information and the type of information allowed, and what is ultimately deemed irrelevant. 82
Without a counter-narrative, victim statements prioritize emotive responses to crime, and
jeopardize the jurors ability to determine a sentence on factual basis alone. The executable
body is dehumanized, making condemnation straightforward. As Foucault notes, while we
may have qualms about answering one death for another...how can anyone not want to get,
and by means without appeal, of someone who is fundamentally a criminal...and naturally
a monster? The safety of all of us is at stake.83
When the executable body is robbed of its humanity, it is clear that the death penalty
is other-directed.84 As Hyde notes, [e]xecution marks the limits of empathy, reminding
citizens of the ultimate disconnection between themselves and the condemned, a
disconnection that seeks to operate at a moral level.85 This disconnection is ensured in
death penalty litigation by dehumanization the clearest distinction possible, between
human/non-human.

72
73
74
75

Gardner v. Florida
Bandes 154
Bandes 179

Ian The Evidential Quality of Victim Impact Statements (2009) 13 E & P

293-320.
76 Haney 1450
77 Bandes 181
78 Haney 1450
79 Ibid. at 19.
80 Ibid. at 21.
81 Bandes 162.
82 Bandes 164
83 Foucault, Proper Use of Criminals, 433
84 Tyler 143
85 Hyde, Alan. Bodies of Law. (Princeton: Princeton University Press, 1997).

b. The Executable Body as Sacrifice

I am sure her anger will not subside until it has found a victim. Let us pray
that the victim is at least one of our enemies(from Euripides Medea)
In Magic, Science and Religion, Malinowski argues that in times of stress, societies often look
to magic and ritual to control the uncontrollable and know the unknowable 86. Monica Wilson
argues that rituals reveal values at their deepest level.87 It is little stretch to see the death
penalty as a ritual that works to quell and tame societys anxieties and aggressions, and
thirst for vengeance.
In Violence and the Sacred, Rene Girard argues that vengeance is a vicious circle. 88
Vengeance begets vengeance, with always the risk of causing a chain reaction. 89 Because
communities detest violence, Girard maintains, they make a duty out of vengeance. 90
But it is vengeance, not violence, that needs to be restrained. 91 When one is wronged, the
urge to seek revenge festers long after the stimulus is removed. 92 Putting an end to the
vicious circle, Girard argues, requires a radically new type of violence, truly decisive and
self-contained.93 In modern communities, this occurs through the criminal justice system. 94
However, what happens when the community perceives that the criminal justice system has
failed them? When those who have lived life according to the law are wronged, liberal
conceptions [of justice] often fail to meet the emotional needs of the victims 95 as well as
the needs of the community at large. It is through metaphorical sacrifice that a community
can satisfy its collective emotions.
In traditional societies, the purpose of sacrifice is often to prevent the perpetuation of
vengeance and the violence that is the inevitable result. To harness the desire to seek
vengeance, the criminal justice system turns revenge into legal procedure. Problems arise,
however, when the criminal justice system is seen as insufficient: when victims, unavenged,
seek reparations in civil court, and when the public cries for action are unceasing. Adajem
argues that in such a situation, the criminal justice system must justify
harsher...punishment that is quote out of proportion and without proof of either its deterrent
or its ethical value.96 As harnessed revenge97, the criminal justice system employs the
executable body in ritual sacrifice.
The ritual of sacrifice has distinct elements: It requires the substitution of a
surrogate victim for a single victim, and a single victim for a community. 98 Its purpose is to
bring back the past, and restore community cohesion99 through catharsis. It takes a
communitys violence - all the dissentions, rivalries, jealousies, and quarrels within a

86 Malinowsi
87 Monica Wilson
88 Rene Girard, Violence and the Sacred. Trans. by Patrick Gregory (Baltimore, Johns
Hopkins University Press, 1977) 14 [Girard].
89 Girard, supra note 18 at 14-15.
90 Ibid.
91 Ibid. at 17.
92 Anthony Storr, Human Aggression (London: Penguin Press, 1968) cited in Girard
at 2.
93 Girard, supra note 18 at 27.
94 Ibid. at 16
95 Adadjem, supra note 1 at 5.
96 Adadjem, supra 1 at 27.
97 Adorno and Horkneimer, in Aladjem, 29.
98 Girard 13
99 Girard 8

community100 and redirects it into proper channels.101 It professes that only blood can wash
away blood.102 It is demanded by a god103 and it requires misunderstanding to conceal
displacement upon which the rite is based. 104 These elements ensure that the ritual fulfills
its purpose, catharsis,105 is ensured.
Selection of the Executable Body:
Sacrifice requires a body to play the role of the surrogate victim. Girard calls this
victim the monstrous double106 because he is to be neither familiar nor foreign, at once
interior of and on the exterior of the community.107 He must resemble the thing replaced but
also be different enough so that [t]heir death does not automatically entail an act of
revenge.108 Such a person would be one who lacks a champion, and whose social links
with the community are weak or lacking. 109
Girard argues that in some societies whole categories of human beings are
systematically reserved for sacrificial purposes in order to protect other categories. 110 These
in marginal categories blacks, Hispanics, white trash - can be easily reconfigured into
executable bodies.
It was just over a century ago when the U.S. Supreme Court in Dred Scott v Sandford
held that blacks could not be citizens because they were subordinate and inferior beings,
who have been subjugated by the dominant race...and remained subject to their
authority111 Plessy v Ferguson (1896), which held that separate but equal was
constitutional was upheld until Brown v Board of Education, more than 50 years later.
Americans remain perplexed by racial issues. The question of what race means has
never been fully resolved. Historian Stuart Banner notes that slavery produced a cultural
gap between the north and south when it came to views about the death penalty 112. Views
on the death penalty were closely linked with views on slavery since the majority of the
capital crimes enacted in the eighteenth century applied only to crimes committed by
slaves113. With the abolition of slavery came the rise of extra-legal lynching of black men by
white mobs intent on getting justice when they felt they had been wronged and knew that
the criminal justice system would come up short in their eyes. Although lynching was not
exclusive to the Southern states, Southern lynch mobs continued to practice their form of
vigilante justice long after it was a rarity elsewhere in the nation 114. Steiker argues that the
death penalty continues to hold symbolic power in the South where the death penalty and
control of Blacks has gone hand in hand for over a century115.
The relationship between race and the death penalty was first extensively studied
David Baldus in a study known as the Baldus Study. Baldus concluded that blacks who

100 Girard 8
101 Girard 10
102 Girard 36
103 Girard
104 Girard 5
105 Girard notes that the word catharsis may be from the Greek word kathairo,
which means, to purge the land of monsters.
106 Girard 272
107 Girard 272
108 Girard 13
109 Girard 13.
110 Girard 10
111 Dred Scott
112 Banner
113 Stieker, Carol S., Capital Punishment and American Exceptionalism (2002) 81 Or. L.
Rev. 123 [Stieker].
114 Brundage, W. F. Introduction in W.F. Brundage, ed. Under Sentence of Death:
Lynching in the South. (The University of North Carolina Press: Chapel Hill, 1997) 4.

115 Stieker, supra.

murdered whites had a higher chance of receiving the death penalty, and that members of
both races that kill whites are 4.3 times more likely to receive a death sentence. 116 Although
blacks are 12 percent of population in the United States, they represent 34 percent of those
executed.117 Studies show that prosecutors are heavily influenced by the race of the victim:
In one study, 80 percent of the victims of those recommended for the death penalty were
white, while only 14 percent of victims were black. 118 Almost all prosecutors (ninety percent)
are white.119
In McCleskey v Kemp,120 the Supreme Court considered the Baldus Study, concluding
that although the study suggests the existence of bias in capital cases, the defence could
not prove that McCleskey had been unfairly treated because of his race. 121 Instead of merely
discriminatory effect, the defence would have to show discriminatory intent. The majority
also noted that prosecutorial decisions necessarily involve judgmental and factual decisions
that vary from case to case122 though they rejected Blackmun and Brennens dissenting
opinion that urged procedural guidelines for prosecutors.
The selection of the monstrous double in capital cases is a task given to the state
or federal prosecutor and he remains part of the ritual from his representation of the state at
trial throughout the appeals process. In both state and Federal divisions, prosecutors have
wide discretion. Additionally, in some states, including Virginia, guidelines are not
mandatory. Prosecutors are not formally accountable to the public except when seeking reelection. They enjoy wide discretion as long as their decision is based on probable cause. 123
Many states have no appellate review.
In pursuing a capital case, prosecutors consider a defendants prior record and
consult the family of the offenders victim. In the case of state prosecutors, they usually are
left to decide whether or not to put the option of the death penalty to the jury. Federal
prosecutors make recommendations to the Attorney General who then makes the final
decision.
The position of prosecutor allows for significant flexibility to choose the most
appropriate surrogate victim. The case of the Beltway Sniper is an example of this. John
Allen Mohammad was charged after a shooting spree across the Washington DC area that
left 10 dead 6 wounded. Although the majority of the shootings took place in Maryland,
Attorney General John Ashcroft pushed to have the crimes prosecuted at the Federal level. To
accomplish this, he filed charges according to the 1946 Hobbs Act, which makes robbery or
extortion a federal offence when it obstructs interstate commerce 124 . He sent Mohammads
trial to Virginia, where three of the shootings had occurred, since Marylands death penalty
was on hold because of alleged racial disparity. To explain his move, Ashcroft argued that
[i]t is imperative that the ultimate sanction be available. 125

116 David C. Baldus & George Woodworth, Race Discrimination and the Death
Penalty: An Empirical Legal Overview in James R. Acker, Robert M. Bohm & Charles
S. Lanier, eds. America's Experiment With Capital Punishment : Reflections
on the Past, Present, and Future of the Ultimate Penal Sanction (Durham,
NC: Carolina Academic Press, 1998) at
117 Cite this
118 Cite this
119 Cite this
120 McCleskey v. Kemp 481 U.S. 279 (1987).
121 Davis, 83.
122 Davis, 83
123 Borden-Richer v. Hayes (1978)
124 Hobbes Act
125 Davis, 120

It would be virtually impossible for a prosecutor to make fair and unbiased choices in
every case126. That prosecutors choose, with reference to the demands of justice,
according to proximity to the monstrous double ideal.
It is not necessary that the surrogate victim is guilty. The sole requirement is that the
victims is sacrificable127, so that they can be reconfigured into objects of blame. 128
Foucault recognized the irrelevance of guilt: [f]or a justice system to be unjust, it doesnt
need to convict the wrong individual; it only needs to judge in the wrong way. 129 Judging
guilt or innocence becomes irrelevant when the transformation of the executable body into
the sacred object of sacrifice is complete. The body becomes full of meaning, ensuring the
community that these are neither trivial nor divisive victims 130, but are ones most logical
for the transference of the communitys vengeance.131
The fact that innocents are being executed demonstrates societys need for the
executable body. Willingness to sacrifice the innocent reflects the same cathartic need to
give expression to an otherwise inexpressible rage132 in hopes that something can be made
from seemingly senseless acts of violence.
In Herrera v Collins,133 the U.S. Supreme Court held that although the premise that
the innocent should not be executed has elemental appeal(as it is protected under the
eight and fourteenth amendments to the Constitution), the federal courts would not allow
review of a case unless it alleged a constitutional violation 134. In fact, Rehnquist argued,
citing Patterson v New York., "[d]ue process does not require that every conceivable step be
taken, at whatever cost, to eliminate the possibility of convicting an innocent person." 135
Rehnquist notes that the Texas Governor has the power to grant full clemency when a
prisoner was actually innocent, but that Texas refusal to entertain petitioners new
discovered evidence does not violate the principle of fairness that is rooted in the
traditions and conscience of our people.136
In a scathing dissent, Blackmun asserted that executing an innocent person would be a
constitutionally intolerable event.137 Justice OConnor, concurring, argued that [n]othing
could be more contrary to contemporary standards of decency...than to execute a person
who is actually innocent.138 Herreras last words were: I am innocent, innocent, innocent.
Something terribly wrong is happening here tonight.139
The Act of Sacrifice:

126 The prosecutor who recommended death for every capital case
127 Girard 4
128 Adadjem, supra at 16.
129 Michel Foucault, The Proper Use of Criminals in James D. Faubion, ed.
Foucault/Power, trans. by Robert Hurley, et. al. (New York: New York Press, 2000)
329.
130 Girard 273
131 Girard 273.
132 Adajem 2
133 Herrera v. Collins 506 U.S. 390 (1993).
134 The court held in Jackson that a federal habeas courts can determine (1) that a
prisoner is not being held in violation of the Constitution and /or (2) that the record
evidence led to a rational, though not necessarily correct decision in finding the
prisoner guilty. See Jackson v. Virginia 443 U.S. 307 (1979).
135 Patterson v. New York, 432 U.S. 197,208 (1977).
136 Herrera at 411 (quoting Patterson )
137 Herrara at 419
138 Herrera at 430
139 Amnesty International

The ritual act of the death penalty gives the punishment its cathartic value. Through
the sacrificial preparation, the executable body is transformed into what Girard terms the
sacred140 - he is at once the source of violence and the source of the communitys
redemption.
Although he holds considerable power, the surrogate now appears as a monster and is no
longer part of the community.141 Because of a victims aura of exteriority 142 the
community is easily mistaken into thinking that he was never part of the community in the
first place.
As in Aztec human sacrifice, the prisoner must be physically well before he is
sacrificed. Those guarding Aztec prisoners of war were told, Take care they do not die...Feed
them well, let them be fat and desirable for the sacrifice. 143 Aladjem explains that since a
message must be conveyed and received with certainty the surrogate victim must be in
full possession of his faculties.144
This message must also be communicated to the public at large. Two days before the
execution, the accused can choose to do a media interview. Present at the execution are
allowed up to 12 witnesses, with one chosen by the accused. The efficacy of the message is
dependant on the knowledge of the surrogate victims last moments of life.
Aladjem argues that ritualized language makes the sacrifice of the executable body
seem clinical and just. The details of the ritual make sure that it is performed the same way
every time to ensure its continued legitimacy. The execution is rehearsed. Every hour of the
week before execution are accounted for.
c. The Executable Body as the Infallibility of the State
The death penalty represents the moral and physical infallibility of the nation.
As Dworkin argues, US law has an ability to be always something other than what it is
incapable of finality.145 The death penalty allows the United States to do the impossible: to
judge what cannot be judged, to be morally certain in a time of moral uncertainty, and t
affirm the integrity of the legal system when the public is begging for closure.
Modern punishments, Foucault argues, do not aim to punish the body, or even touch
the body, but to reach something other than the body itself146. In doing so, they judge
something other than crimes, namely the soul of the criminal. 147 A sentence means not
only that one is responsible for a crime, but that ones soul is morally inept.
The death penalty uses violence of criminal body as a response to an imagined
violence and thus generates an anxious questioning within, and about, the ways state
violence differs from the violence to which it is, at least in theory, opposed. 148 The law
legitimizes the death penalty in order to prove that it can transcend the violence of its
origins.149 To transcend violence is to make violence within the law credible. Weisberg
argues that the death penalty employs termination variation which are ways in which the
death penalty takes the unknowable and fallible and makes them known and ended. The
law, in a sense, is alienating, but its violence is cultural and symbolic 150
Vasquet v Harris (1994) Weisberg argues that the only way to accept such a system
is to deregulating death151

140
141
142
143
144
145
146
147
148
149
150

Girard, cite this

Girard 270
Girard 270
Duran, 1964, quoted in Radelet 146.
Aladjem 48.
Ronald Dworkin, Taking Rights Seriously, ch 8
Ibid. at 11.
Ibid. at 19.
Sarat, Pain 69
Sarat Pain 4

Public perception is often that crime is increasing at an alarming rate. Building more
and larger prisons, arresting a greater number of offenders and imposing tougher sentences
has not been shown to prevent crime. In fact, much of the public thinks that murderers are
freed too soon152. Many feel helpless about the situation of overcrowded prisons and the
violence they see daily on Fox News. The death penalty provides satisfaction for three main
reasons.: it gives the war on crime a tangible result. It replaces a crime with a abstract
memory of justice, and it provides moral certainty.
Over the past 40 years, there has been a significant increase in public support for the
death penalty. In 1965, 38 percent of Americans said that they are in favour of the death
penalty for those convicted of murder. In 1975, the number jumped to 60 percent; in 1985,
to 75 percent. In 2009, 65% of Americans say they would support the death penalty for the
worst offenders. In addition, 49 percent say that the death penalty is not imposed often
enough153.
There are many theories behind the fluctuation of American support for the death
penalty. Social and political instability, throughout the 1960s and 1970s brought with it a
significant increase in support. Rising crime rates, Watergate, the Vietnam war, and the civil
rights movement all led the public to fear and frustration with the violence and instability
they saw. The 1968 Presidential electoral campaign was the first of its kind, putting crime
prevention at the top of the political agenda. After the fear of communism had subsided and
the cold war had slipped off the publics radar, Richard Nixon had to find an issue to
champion domestically. During the early sixties, crimes rates had doubled, and televised
footage of riots in New York and Los Angeles had put crime at the forefront of the public
imagination. Nixon famously ran on a platform of law and order, writing in Readers
Digest, "in a few short years ... America has become among the most lawless and violent
[nations] in the history of free people", a fact he attributed to the soft on crime decisions
of the courts who were "weakening the peace forces against the criminal forces 154. Not
coincidentally, public support for the death penalty saw its greatest jump during his term in
office.
Again, in September of 1994, the all-time high level of support, at 80%, came at a
time when parties were exploiting the public concern for law and order. In 1995, Newt
Gringrichs Contract with America which included a hard-nosed approach to criminal justice
called The Taking Back Our Streets Act155 passed into law. The act called for death penalty
reforms including the imposition of time limits on filing for habeas corpus relief and well as
limiting the number of applications except in the rarest of cases. The increased support
then is not beause of rising crime as much as a rising concern about crime and uncertainty.
The executable body provides a tangible result in the war on crime. When the
heart of the body of the executable subject stops beating, we can be certain that justice
has been carried out. Instead of being incapable of finality, the death penalty proves that
we can have closure.
Executing a body allows us to take an unimaginable crime and turn it into an event
that can be measured. A striking example of the importance of the measurability of the
executable body is in press conference immediately following the execution of John Allen
Mohammad. A reporter, Jon Burkett, was one of the first to speak with the media outside the
prison. He began by recounting the timeline of the events:
JON BURKETT, WTVR-TV REPORTER, WITNESSED JOHN ALLEN MUHAMMAD'S
EXECUTION: Burkett from WTVR, CBS 6 in Richmond, Virginia.

151
152
153
154
155

Robert Weisberg, Deregulating Death (1983) Sup. Ct. Rev. 305 [Weisberg].
Article about Georgia jurors
Gallup poll
Readers Digest. Cite this.
The Taking Back Our Streets Act, cite this

At 8:58, John Muhammad was walked into the death chamber. He kind of
staggered in. He was in a blue shirt, blue denim jeans. He's kind of being
held up by corrections officers.
He looked around, mostly to the floor. He was very clean-cut. They
strapped him in his by his legs first; then his waist, then his arms.
The warden, at that time, stood over Muhammad's right shoulder. His feet
were facing us. His head was away from us.
By 9:00 p.m., six corrections officers had strapped him down and you could
see Muhammad kind of clench his fist a few times. He wiggled his right foot
a couple times from what I noticed.
Then the blue curtain was shut...
At 9:06, they pulled the curtain back. You could see Muhammad strapped
there...
At 9:07, you could see him twitching a lot. You could see his -- and blinking
a lot. And you could see his breathing increase.
At 9:08, he sat there -- he was there motionless.
At 9:11 p.m., Muhammad was pronounced dead.
At this point, a reporter asks Burnett to repeat the details of the timeline:
QUESTION: Could you go over what you said again about the -- the -- the -after the -- the process began, the point where the injections began?
BURKETT: At 9:06, they pulled the curtain back away. They pulled the
curtain back so we could see him again. He sat there or he laid there. He
was silent.
At 9:07, you could see him to start to twitch, with -- which they told us that
that means they started administering the drug in the I.V. You could see the
-- Republican I.V. just bump a little bit.
And at 9:07, could you see him blinking a lot. His breathing got faster. I
think you counted seven...
UNIDENTIFIED FEMALE: About seven, yes.
BURKETT: About seven deep breaths.
And then at 9:08, he was motionless.
...
BURKETT: No. He didn't -- he didn't appear to be. He staggered in, but they
kind of -- you know, they -- they held him up and lowered him on the
gurney. And by 9:00, he was strapped down firmly to the gurney.
QUESTION: So at 9:09?

BURKETT: No, 9:11 is when he was pronounced dead.156

This need for an exact time of death makes the end of a life now seem entirely
calculable157 as it freezes in the recorded moment of finality158. The unknowable has
become known.
But frustratingly, Mohammad offered no last words. Foucault argues that knowledge
of the offender is a source of power for the state.159 It is what makes a system legitimate.
Although, as Hyde argues, laws discourse of the body constructs the body as a thing,
separate from the person the death penalty requires that it emphasizes that the body is
also the bearer of that person, and a bearer of that person as constructed as a legal subject
in civil society.160 The absence of such knowledge, as when a prisoner refuses to be known,
leads us to hold on to anything that might make the executed more knowable. Again, in the
post-execution press conference, journalists try to get a foothold on this unknowable, asking
questions about what Mohammad was wearing (this was asked twice), did Mohammad
acknowledge anyone? What was his demeanor? As Foucault argues, beyond admission [of
the offence] there must be confession, self-examination, explanation of oneself, revelation of
what one is.161 Such questions seek to gain a sort of power, one that can only come
through knowledge of the executed body.
Sarat argues that Courts and the media attend obsessively to the question of pain.
He argues that they sometimes treat the body as a legible text on which can be read the
signs of excess, the signs that the states chosen method imposes something more than the
mere extinction of life.162 This can be seen in press questions to witnesses of Mohammads
execution.
As Bedau notes, death is different.163 The death penalty is inherently irreversible
and thus implies that we can judge what is good and evil and respond to it appropriately. It
demonstrates a moral certainty that society craves. As Fitzpatrick argues, the notion of
due process implies that there can be a process that ensures all that is due to a person
who is to die.164 He asserts that the existences of super due process proves this can not
be accurate. But being irreversible, the death penalty allows the law to be something other
than what it is. The moral certainly proposed by the death penalty can be seen in Habeas
Corpus reform.
In 1996, President William Clinton signed the Antiterrorism and Effective Death
Penalty Act into law. Included in the act was a section titled that severely curtailed the
ability for death row prisoners to file habeas corpus applications. Title 1: Habeas Corpus
Reform, [a]mends the Federal judicial code to establish a one-year statute of limitations for
habeas corpus actions brought by State prisoners.165 Section 102 states: (1) there shall be
no right of appeal from a final order in a habeas corpus proceeding and a certificate of
appealability may only be granted if the applicant has made a substantial showing of the
denial of a constitutional right.166 Additionally, section 104 asserts that Federal court shall

156 Witnesses reportedly noted the irony of the time at which Mohammad was
pronounced dead: 9/11.
157 Adajem ??
158 Adajem ??
159 Foucault 19
160 Hyde, supra note at 258.
161 Foulcaut in Faubion 177
162 Sarat pain 57
163 Bedau
164 Peter Fitzpatrick, Always More to Do in Austin Sarat, Killing, 130.
165 Anti terrorism act
166 Section 105

not hold an evidentiary hearing on the claim unless: (1) the claim relies on a new rule of
constitutional law, made retroactive by the Supreme Court, that was previously unavailable
or on a factual predicate that could not have been previously discovered through the
exercise of due diligence; and (2) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that, but for constitutional error, no reasonable
fact finder would have found the applicant guilty of the underlying offense. Section 903
then revises CSA provisions, limiting compensation for essentially as aspects of a defence 167.
The writ of habeas corpus has been used for over 300 years, after being developed in
England to provide an option to prisoners who wish to have their case reviewed by a court.
Since 1976, over 50 death row inmates have been released when a court determined they
were being held in violation of the constitution.168 Although a successful application usually
means life in prison instead of death, it has been the only reprieve for those who wish to
challenge the constitutionality of their case. Before 1995, a death row inmate could file
habeas petitions as long as they had the resources to do so. Applications are now limited to
one, and must be filed within a year of conviction, six months if the inmate is represented by
counsel. Federal courts must now defer to the state habeas decisions unless they are
unreasonable. This provision makes it difficult to have a federal evidentiary hearing even
when crucial facts were not revealed at the state level.
The limitations attached to the Anti-Terrorism Act in reference to habeas corpus
applications demonstrate the supposed infallibility of the justice system.
Lastly, executing a criminal body allows a crime to be replaced with that executed
body in our collective memory. The average time period between conviction and executionis
10 years. In Foucaults words, [a] manifest criminal has taken the place of an obscure
crime.169 Without the crime, we feel safer.
Part III: The Moral Implications of
a. Emotive Punishment
Pratt argues that emotive punishments are a decivilizing interruption in the history of
criminal justice.170 She argues that there has recently been a shift in methods of punishment,
tending toward practices that allow for emotional release and have symbolic significance
to the communities in which they are practiced.171 Until recently, she notes, the justice
system had been constructed to avoid such interruptions. Emotive punishments were not
only unwanted, but were profoundly embarrassing for all concerned. 172 Likewise, Norbert
Elias has argued that the mark of a civilizing culture is that it is one that moves away from
sensitivities and emotive reasoning in favour of state control and social habitus. 173
Emotive punishments are similar in three ways: (1) they presume public participation (2)
they privilege emotive reaction over rationality and (3) they are a shift away from dictates of
teh current penal system, willing to adopt practices of previous eras. 174
b. Is vengeance acceptable?
In contemporary American rhetoric, vengeance is not only naturalized, but is
accepted as an appropriate response when we are harmed personally, or as a community.
Solomon argues that the desire for vengeance seems to be an integral aspect of our
recognition to wrong and being wronged.175 Indeed, the man who wants revenge is so
ordinary and that it has become so unsurprising to hear him and others validate the theme

167 Section 903

168 Ned Walpin The New Speed-up in Habeas Corpus Appeals
169 Michel Foucault , The Proper Use of Criminals in Colin Gorden, ed. trans by
Colin Gorden, Power/Knowledge: Selected Interviews and Other Writings: 1972-77
(Sussex: Harvester Press, 1980) 341.
170 Pratt ?
171 Prat 417
172 Pratt 418
173 Elias,
174 Pratt 418
175 Solomon 123.

of white, middle-class revenge176. Pursuing a vengeful justice is often a matter of duty,

pride and honour177. Even if only reluctantly accepted, revenge is seen as an emotional
response we can not help but experience: While [revenge] is not our loftiest emotion, it is
clearly our most powerful.178
Aladjem argues that vengeance takes many forms in respectable society. As
the venting of righteous anger, the vindication of good, the condemnation of evil, the
administration of just deserts, of right over wrong, getting even, a restoration of
balance179 vengeance can integrate easily into civilized society. Under the guise of
noble and unassailable180 retribution, vengeance keeps the executable body viable.
Can vengeance be a legitimate part of the law? According to Shklar, vengeance is
the very opposite of justice in every respect, and inherently incompatible with it 181. Indeed,
historically, American courts have, on the surface, attempted to keep vengeance out of the
legal system. Like Euripedes whatsherface, the creation of the criminal law was to minimize
vigilantism and other forms of public violence, by channelling retributive emotions, like
vengeance, into a structured system of crime and punishment. Murphy argues that the
criminal law institutionalizes certain feelings of anger, resentment and even hatred that we
typically...direct toward wrong-doers,182 with an end goal of satisfying collective
emotion.183
Mackie argues that the paradox is that retributive principles cannot be explained but
also can not be eliminated from moral thinking.184 She argues, citing Westermarch, that
retribution in vain condemns the gratification of the very desire from which it sprang. 185 It
would seem then that if one accepts the view of the pervasive natural force of the desire to
seek revenge, retribution can not be taken out of punishment, nor can it be replaced. 186
The U.S. Supreme Court has often validated the role of retribution in justifying the death
penalty.187 Justice Scalia has argued that the death penalty can be justified by retribution
alone.188 In Gregg v. Georgia189, the Court said that the publics desire for retribution is an
appropriate basis for determining that the death penalty is acceptable. 190 In the same
judgement, the court articulated the importance of public opinion in choosing to maintain
the penalty as a means of punishing the most heinous crimes. In the majority opinion,
Justice Stewart wrote that capital punishment is an expression of societys outrage at
particularly offensive conduct191. Thus, [it] is essential in an ordered society that asks its
citizens to rely on legal processes rather than self-help to vindicate their wrongs. 192 Without

176 Adajem 8
177 C Boehm, in Adajem?
178 James O. Finckenauer, Public Support for the Death Penalty: Retribution as Just Deserts
of Retribution as Revenge (1988) 5 Just. Q. 81 at 95.

179
180
181
182
183
184

Adajem 10
Solomon, supra note at 135.
Cite this.
Murphy 125
Solomon, supra note at

New York Times, 1986

Mackie, J.L. Morality and the Retributive Emotions (1982) 1 Crim. Just.
Ethics 3.

185 Westermarck, in Mackie, 4.

186 Mackie 3
187 Gregg v. Georgia 428 U.S. 153(1976) at 184 (1976) and Furman v. Georgia 408
U.S. 238 (1972) at 308.
188 Cite this
189 Gregg v Georgia (428 U.S. 153, 1976)
190 At para 183-187.
191 Gregg at para 18.
192 Gregg at para 18.

this kind of retributive justice, Stewart argues, people are likely to seek to exact their own
revenge since [t]he instinct for retribution is part of the nature of man. 193 Of course,
Stewart relies on the assumption that vengeance is an instinctual human emotion at the
experience of a wrong and that rerouting retributive emotions will necessarily lead to
stability.194
Our system seems more rational because we rationalize revenge. But the apparatus
that serves to hide the true nature of legal and illegal violence from view eventually wears
thin(23).
An important question is whether vengeance and justice can work together in a morally
acceptable way. Henderson argues that the rule of law overestimates the ability of the law
to separate law and emotion.195 Bandes argues that emotions are inevitable so the question
is not, should the law allow emotions to play a role in law, but how those emotions should be
prioritized and expressed.196
Emotions and the law need not be exclusive. Emotions, Bandes argues, have a
cognitive aspect and reasoning has an emotional aspect.197 They are also instinctual and
uncontrollable to some extent.198 Cognition helps emotions adapt and change with
circumstances. It might be undesirable to filter emotion out emotion helps give a truer
perception and more accurate and just decisions.
What can vengeance tell us? Does it have any moral worth?
In Trop v. Dulles, Brennan, J. (concurring) argued that retaliation, vengeance, and
retribution have been roundly condemned as intolerable aspirations for a government in a
free society.199
c. Brutalization
They say well, Tim, -- if we think you are guilty, imagine the paradox in the
Gulf War, you were given medals for killing people. McVeigh, in interview
with
It is important to consider whether the death penalty has a brutalizing effect on
American culture. Since at least Beccaria (21) scholars have warned that by killing a
murderer, we encourage, endorse, or legitimize unlawful killing. 200 Even though death
might be deserved, the difference between death and other punishments is not physical,
but social (22).201 Thus, it is not because the death penalty is physically harsh that it is
immoral, but because it can amount to, as Nietzsche calls, a warrant for and title to
cruelty.202
Gibbs argues that it is one thing for the criminal law to function as the protection of
those accused of a crime from the uncontrolled passions of the public for vengeance.
However, he maintains, allowing public opinion to dictate statutory penalties or judicial
rulings is not an altogether different matter.203 It blurs the boundaries between public and
private, confusing what is acceptable and lawful with what is not. As Gibbs notes, allowing

193 Gregg at para.

194 Ficnknauer 82
195 Henderson 95-96
196 Bandes, supra note at 149.
197 Bandes, supra note at 146.
198 Bandes, supra note at 150.
199 356 U.S., at 111
200 Van den haag
201 Van den Haag, The Ultimate Punishment: A Defence. [van den Haag, Ultimate]
202 Nietzsche, Freidrich. On the Geneology of Morals, Kaufmann trans. (New York:
Vintage, 1969) at 65.
203 Gibbs, J.P. (1978). The Death Penalty, Retribution and Penal Policy. (1978) 69 The
Journal of Criminal Law and Crimonology 3 298.

people to express emotions like vengeance does not mean that these emotions should
written into law. The law legitimizes such emotions because of its inherent power.
Through state-sanctioned violence, death is normalized as a reaction against the
many and brutal transgressions of the easily identifiable other. 204 It becomes necessary.
d. The Example to the World
e. Morals
Part IV: Do We Have a Choice?
The wild beast has not been slain at all, it lives, it flourishes, it has only
been transfigured205 Nietzsche
In Precarious Life, Judith Butler suggests that when someone wrongs us, we should
first consider our ultimate goal and ask whether it is a goal worth pursuing. 206 Does it reflect
American values? Is our goal morally sound? Butler argues that we need to [e]ndeavour to
produce another public culture and another public policy in which suffering unexpected
violence and loss and reactive aggression are not accepted as the norm of political life 207
However, mercy on offenders may not be the best solution. As many have indeed
argued, mercy means imposing less punishment than an offender deserves...[and]
therefore conflicts with equal justice.208 Politically, mercy is an incredible risk........ Mercy
should be exposed for the vice it is.209
Nussbaum agrees, in part, with those who oppose mercy: Failing to punish him,
severely, would show insufficient commitment to the values that his actions denied. 210 But,
she argues, to take into account only what his acts... expressed would be to say something
false about his situation.211 It is this reality that the death penalty fails to account for. And
this reality that exposes the moral deficiency of the death penalty.
According to Levinias, ethics is a struggle to keep fear and anxiety from turning into
murderous action.
If Martschkat in correct in arguing that our punishments define the spirit of the age
and the moral constitution of our century,212 we must consider what the death penalty say
about American culture. Recognize the frailties of human kind. Which involves, according
to Seneca, taking up a certain attitude towards ourselves saying, perhaps, we are all weak
and subject to deformation213 This emphasizes the values of imagination and mutual
aid214
Objectors to Desmond Tutus study of the Truth and Reconciliation Commission in
South Africa argued that although forgiveness might be preferable in theory, there is an
unquenchable rage that leads people to want to settle old scores. Tutu argues that those
who cannot forgive are forever damaged by their past, locked into victimhood. Because of
this, even when people dont show remorse, it is in our interest to forgive. 215

204 Tyler, 130.

205 Nietzsche, Friedrick. Beyond Good and Evil. (New York: Random House, Inc.,
1966) 299. (trans. Walter Kaufman)
206 Butler, supra note see ch. 1.
207 Butler, supra note at XIV.
208 Eisenberg and Garvey at 165.
209 Eisenberg & Garvey at 171.
210 Nussbaum
211 Nussbaum, supra note at 370.
212 Jergen Martschukat, Nineteenth-Century Executions as Performances of Law,
Death, and Civilization in Austin Sarat & Christian Boulanger, The Cultural Lives of
Capital Punishment (Stanford, CA: Stanford University Press, 2005) at 19.
213 Nussbaum, supra note at 371.
214 Nussbaum, supra note at 371.
215 Tutu, Desmond. No Future Without Forgiveness. (London: Rider, 1999) 220.

Despite justifications, even if deterrence did justify, we need to look at the moral
implications of our actions and decide whether this is acceptable to us.

Th
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