There is still an existing political debate about whether of not a given society should adopt (perpetuate) death penalty as its ultimate judicial sentence. It is surprising to often hear people say that they are against death penalty “except for… (place here the most horrifying crime),” not realizing that this “except for” validates by definition their acceptation for this sentence. Beyond the strictly emotional (or even religious) aspects of the arguments given by its opponents, I would like to ask whether we actually fathom what death penalty really means in a given society.
In the context of premodern society that Michel Foucault describes as following a paradigm of sovereignty based on the right of the sovereign to dispose of its subjects’ life (to go to war for example) in exchange of protection against the various antagonisms coming ‘from the outside,’ the act to give death to one of these subjects can be integrated within the logic of such social tacit contract. On the other hand, the modern era is characterized by a biopolitical (quoting Foucault again) administration of society, i.e. an organization of life in its very mechanisms (health, sexuality, reproduction etc.) to optimize the function of society. In order to describe how death penalty integrates within this scheme, I need to briefly explain the idea of thanatopolitics (politics administrating death) that I introduced in a previous article. This notion emerges from the observation that death is “at work” and that there are therefore only two possible ways of dealing with it: acceleration or deceleration of the death process. Biopolitics therefore involves by definition its counterpart (one might say that there are the same), thanatopolitics. The administration of toxicity in the context of food production (an important part of biopolitics) or society’s infrastructure (pollution) or its risk factor (nuclear accidents), is what I include in this thanatopolitics that a given society has to organize to either administrate the acceleration or the deceleration of the death process.
What about death penalty in this context? The execution of a member of society planned and organized by society itself corresponds to an intense acceleration of the death process enough to immediately cease the vital functions of this body. Although one can see how biopolitics cannot escape from thanatopolitics, death penalty corresponds to thanatopolitics that escapes from biopolitics, and therefore brings us back to a premodern mode of sovereignty. It would be however inaccurate to think that the conditions of the execution are also considered in the logic of the premodern era. The shift of this era toward our era was also marked by the invention of a thanato-technology in order to administrate death in a more efficient way, efficiency being one the key notion of this new mode of sovereignty. In Les corps vils: Expérimenter sur les êtres humains au XVIIIe et XIXe siècles (Vile Bodies: Experimenting on Human Beings in 18th and 19th century) about which I will soon dedicate an entire article, Grégoire Chamayou introduces the genesis of the guillotine that remained the technology of the execution in France until 1981, when death penalty was abolished (my translation):
An “incorporal penalty” is set up. It targets the person to withdraw his/her rights from him/her, to the point of his/her right of living, rather than targeting the body to make it suffer. What remains is to find a technical means corresponding to this new conception of penalty. How to withdraw life to the person without having his/her body suffer? This implies to invent a non-cruel punishment, a “humane torture,” a philanthropic execution. Between medicine and philosophy, people have been wondering and debating for a long time about the problem of the good regime of life; the new question became the one of the good regime of death. (Grégoire Chamayou, Les corps vils: Expérimenter sur les êtres humains au XVIIIe et XIXe siècles, Paris: La Découverte, 2008, 35.)
The guillotine had been chosen (after many debates as the book illustrates) for its systematic capacity to withdraw life in the time laps of a second, a perfect acceleration of the death process that the subject’s consciousness would not have time to process. Countries that still apply death penalty have all chosen their own thanato-technology after having developed their effects. The invention of the electric chair and the gas chamber as some of the means of execution in the United States is particularly expressive of this development of new thanato-technologies since they do not find their equivalent in the pre-modern era like the guillotine does (a more efficient means of cutting heads).
The invention of “philanthropic executions” (to re-use Chamayou’s oxymoron) is an illusory attempts of biopolitics to be present in the context of death penalty. It is illusory as the outcome of an execution corresponds in no way to the administration of “the totality of functions that resists to death” (Xavier Bichat’s definition of life) since death is the outcome. The execution itself can therefore not be part of the same logic. Quoting Johann Gottlieb Fichte (1797), Chamayou states the following (my translation):
The act of killing the convict is out of law, it is an extra-juridical act, a pure physical action. An act that is not an act of the law but an act of the police. Through civil death there is a total loss of rights for the convict. (S)he has no more rights, no more juridical personality. We can go as far as saying that (s)he is only a body, an animal body. (Grégoire Chamayou, Les corps vils: Expérimenter sur les êtres humains au XVIIIe et XIXe siècles, Paris: La Découverte, 2008, 90.)
One can see the impossibility by essence of integrating death penalty in the societal scheme of biopolitics. There is a deep contradiction between these two regimes of sovereignty that should found a critique of death penalty within the governmentality that we are constructing. At a more emotional level where this article started, one just needs to really fathom what it means for a society to definitely and absolutely withdraw one of its member of any regime of life. The reasons for it are only self-contradictory: this subject recognized guilty of a crime is not introduced to a regime of life that the law would have introduced in relation to this crime and its conditions; its absolute execution (as a subject of right and as a body) is organized as a spectacle supposed to express the all mighty power of the law but rather, that can only express the absolute failure that death penalty imposes on the law.