Who Deserves to Die?

Who Deserves to Die?: Constructing the Executable Subject

AUSTIN SARAT
KARL SHOEMAKER
Copyright Date: 2011
Pages: 328
https://www.jstor.org/stable/j.ctt5vk499
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  • Book Info
    Who Deserves to Die?
    Book Description:

    How do we select those who will be subject to capital punishment? How do we identify the worst of the worst and decide who among them can and should be executed? Today these questions are more pressing than they have ever been. As the number of people sentenced to death and executed declines in the United States, those who are executed stand out as distinctive kinds of criminals, distinctive kinds of people. Does a death sentence affirm or deny their humanity? Is such a sentence an act of revenge or a carefully calculated act of justice? These are more than questions for policy and law. They are one way of getting a handle on how our culture understands what makes life worth preserving and of delving into its complex calculus of punishment and retribution. Who Deserves to Die? brings together a distinguished group of death penalty scholars to assess the forms of legal subjectivity and legal community that are supported and constructed by the doctrines and practices of punishment by death in the United States. They help us understand what we do and who we become when we decide who is fit for execution. In addition to the editors, contributors include Vanessa Barker, Thomas L. Dumm, Daniel Markel, Linda Meyer, Ruth A. Miller, Ravit Reichman, Susan R. Schmeiser, Mateo TaussigRubbo, and Robert Weisberg.

    eISBN: 978-1-61376-186-1
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Between the Promise of a Shared Moral World and the Utter Unintelligibility of Death Itself: An Introduction to the Construction of Executable Subjects
    (pp. 1-20)
    Austin Sarat and Karl Shoemaker

    On December 13, 2005, the state of California executed Stanley “Tookie” Williams for the 1979 murders of four people, making him one of more than 1,100 put to death in the United States since the resumption of capital punishment after the United States Supreme Court’s 1976 decision inGregg v. Georgia.¹ Williams, who was infamous for his role in founding the Los Angeles Crips gang, renounced his gang affiliation while on death row and apologized for the Crips’ founding. In addition, he became an antigang activist, co-wrote children’s books, participated in efforts intended to prevent youths from joining gangs, and...

  5. PART ONE What Kind of Self Is the Executable Subject?
    • 1 The Medieval Origins of the Supreme Court’s Prohibition on Executing the Insane
      (pp. 23-39)
      Karl Shoemaker

      The history of capital punishment holds an unsettling place in the United States Supreme Court’s death penalty jurisprudence. On the one hand, the widespread acceptance of capital punishment in the early Republic is powerful evidence that, however the Eighth Amendment was meant to regulate punishment at the time of the framing, the sentence of death itself was not unconstitutional. Although arguments against the death penalty can readily be found in the writings of prominent early American jurists and intellectuals, the objections to the death penalty they voiced tended to be prudential, religious, or political, not constitutional.¹ The constitutional power of...

    • 2 The Unlucky Psychopath as Death Penalty Prototype
      (pp. 40-72)
      Robert Weisberg

      Much commentary on the death penalty sets out to identify the type of character that American criminal law deems worthy of the death penalty, the set of moral or psychological traits that define the person who, for some deontological reasons, deserves death or whom, for various practical reasons, we need to execute. Some of that commentary is descriptive observation about the sorts of evidence prosecutors deploy and the narrative and imagery in which they frame it, thereby inducing jurors to fit the defendant into what the prosecutor thinks will be their conception of the deathworthy character.¹ Some of this commentary...

    • 3 Waiving from Death Row
      (pp. 73-110)
      Susan R. Schmeiser

      Even, or perhaps especially, for the most punitive among us, it makes little sense to say that the prisoner who invited and embraced execution got what he or she deserved. Whereas reigning theories of punishment understand privation as a detriment, the martyr makes a triumph of suffering just as the masochist makes pleasure out of pain. Revenge, though, seems less sweet and justice less pure when punishment finds a willing recipient. Moreover, the consenting inmate appears to mask the illegitimacy of capital punishment, conferring a façade of untroubled efficiency and agreement upon a system carefully fashioned to camouflage its own...

    • 4 No Remorse
      (pp. 111-128)
      Ravit Reichman

      “Now and then it is possible to observe the moral life in process of revising itself,” Lionel Trilling wrote in the first sentence ofSincerity and Authenticity. Such a shift, he continues, can be seen “perhaps by reducing the emphasis it formerly placed upon one or another of its elements, perhaps by inventing and adding to itself a new element, some mode of conduct or feeling which hitherto it had not regarded as an essential virtue.”¹ Such revision can be sweeping or subtle in nature, and in Trilling’s genealogy about the gradual process through which our cultural preoccupation with sincerity...

  6. PART TWO Constructing the Executable Subject:: Sacrifice and the Rituals of State Killing
    • 5 The Unsacrificeable Subject?
      (pp. 131-150)
      Mateo Taussig-Rubbo

      Who deserves to die? In a book focused on the death penalty in the United States, a fair assumption is that this question envisages death as a punishment. Recent decisions by the United States Supreme Court have focused the question by limiting the application of the death penalty when defendants are minors, when the defendants are unable to understand the purpose of their execution, or when the defendants committed a crime other than murder. These individuals, we are now told, do not deserve to die. This chapter examines a different tradition in which death is not a punishment, the tradition,...

    • 6 Last Words: Structuring the State’s Power to Punish
      (pp. 151-175)
      Vanessa Barker

      In the moment of death, the state must reincorporate the condemned into a shared moral community to maintain its legitimacy. If the state executes the condemned without his or her momentary reintegration, the rationale for the execution and by extension the state’s power to punish is jeopardized. Retributive justice, the current constitutional justification for the ultimate penalty, demands that we perceive the condemned as a responsible, blameworthy, and depraved person deserving state sanction, even death, yet without the condemned’s acquiescence to this legal and moral construct, the sheer violence of the act overshadows the needs of justice. Despite the medicalization...

    • 7 The Meaning of Death: Last Words, Last Meals
      (pp. 176-206)
      Linda Ross Meyer

      What is the meaning of capital punishment? Retribution? Atonement? Euthanasia of the socially undesirable subhuman? Revenge? State-sanctioned murder? The triumph of discipline and technique? Martyrdom? The moment of authentic confrontation with finitude, individuality, and the conditions of autonomy? The final, cautionary chapter of a life-of-crime narrative? Blood sacrifice? None of these labels seems adequate. Death eludes the living. It also fascinates and grips our attention. Our avid interest in the details of executions throughout their history and the rituals we use to set them apart testifies to this fascination and effort to give them meaning. I focus here on two...

  7. PART THREE New Perspectives on Selfhood and the Purposes of Capital Punishment
    • 8 Executing Retributivism: Panetti and the Future of the Eighth Amendment
      (pp. 209-252)
      Dan Markel

      Whom may a state execute? InPanetti v. Quarterman,¹ the United States Supreme Court decided that only those defendants who rationally understand why they are being executed are in fact fit for capital punishment. This chapter argues that this purportedly narrow holding lays the groundwork for a new beginning of the Court’s death penalty jurisprudence.

      Specifically, I argue thatPanettiunderstands retributive punishment as a form of humanecommunicativestate action directed at the offender. What makes action communicative is that it is directed to a designated recipient in a way “meant to convey thoughts done through means reasonably recognizable...

    • 9 Therapeutic Death
      (pp. 253-274)
      Ruth A. Miller

      My interest is the therapeutic potential of capital punishment in the United States. A number of recent United States Supreme Court rulings have understood the death penalty to be a form of rehabilitation or cure, a compassionate punishment taken to its logical conclusion. These rulings have been situated within a rhetoric of welfare, care, and concern, producing citizens with dignity and integrity, citizens capable of reasonable consent. Legal execution, according to these analyses, is like any other modern response to crime: it is a means of helping troubled prisoners understand themselves and their relationship to the world around them.

      Most...

    • 10 The Dead, the Human Animal, the Executable Subject
      (pp. 275-300)
      Thomas L. Dumm

      When a fallible decision results in an absolute end, by what right is a state allowed to exercise its imperfect judgment? In response to this question, the law has become an instrument of the state that mediates our rage, a tool for those who seek to mitigate the unreasonable desire for justice that makes some of us want to kill those who have killed. Reasonable justice alternatively will examine consequence, effectiveness, and the need for restraint. Its reasonability is akin to the reasonability ascribed by John Locke to Christianity. Locke suggests that a belief that is in accord with reason,...

  8. Notes on Contributors
    (pp. 301-302)
  9. Index
    (pp. 303-312)
  10. Back Matter
    (pp. 313-313)