Abstract
In this essay I take up the question of how death can be a penalty, given that each of us will eventually die. I argue that capital punishment in the United States rests on contradictory demands for painless death delivered humanely through pharmaceuticals and yet denies the accused the possibility of natural death. The death penalty must be at once humane and punishing. Analyzing what we mean by ‘botched’ executions, along with the language of the Supreme Court in upholding lethal injection as a humane application of the death penalty, I argue that the fantasy of instant death is at the heart of the tension between death as painless and death as penalty. In the end, I turn to Derrida’s Death Penalty Seminar Volume One, particularly his discussion of Kant’s defence of the capital punishment, and the pivotal role of time in his discussion. Finally, I suggest that the fantasies of instantaneous death and our technological mastery of it result in the fantasy of the ‘good’ punishing death.
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Notes
In Dead Certainty, Jennifer Culbert analyzes some of the implications of this distinction between the cruelty of the penalty itself and the cruelty of its application (2007). She also discusses the court’s decisions in cases involving capital punishment in terms of the notion of judgment, particularly judgments of the good.
Furman v. Georgia, 408 US 238 (Supreme Court 1972).
Baze v. Rees (Roberts opinion), 533 U.S. 35 (2008), 35.
Ibid.
Ibid. 7.
Ibid., 7, n. 4.
For a discussion of the issue of pain in relation to the death penalty, see Sarat (2001).
Romel Broom was scheduled to be executed in Ohio on 15 September 2009. After the executioners tried for over 2 h to find a viable vein to administer the lethal injection; the governor issued a week’s reprieve, during which Broom’s legal team filed another appeal.
References
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Oliver, K. Death as a Penalty and the Fantasy of Instant Death. Law Critique 27, 137–149 (2016). https://doi.org/10.1007/s10978-016-9181-4
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DOI: https://doi.org/10.1007/s10978-016-9181-4