To See or Not To See: Television, Capital Punishment, and Law's Violence

Yale Journal of Law & the Humanities Volume 7 | Issue 2 Article 5 January 1995 To See or Not To See: Television, Capital Punishment, and Law's Violence Austin Sarat Aaron Schuster Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Austin Sarat & Aaron Schuster, To See or Not To See: Television, Capital Punishment, and Law's Violence, 7 Yale J.L. & Human. (1995). Available at: https://digitalcommons.law.yale.edu/yjlh/vol7/iss2/5 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Sarat and Schuster: To See or Not To See To See or Not To See: Television, Capital Punishment, and Law's Violence Wendy Lesser, Pictures at an Execution: An Inquiry into the Subject of Murder. Cambridge: Harvard University Press, 1993. Pp. viii, 270. $24.95 Austin Sarat & Aaron Schuster* "Punishment ... (has) become the most hidden part of the penal process.... We are far removed indeed from... accounts of the life and misdeeds of the criminal in which he admitted his crimes, and which recounted in detail the tortures of his execution.... It is ugly to be punishable, but there is no glory in punishing. Hence ... [t]hose who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself" Michel Foucault, Discipline and Punish "There is a difference between real and fictional murder, between murder and execution, between innocence and guilt. It may be a sign of humility and fellow-feeling to argue the fuzziness of the boundaries in each case, but it is no service to justice or to the innocent to erase them altogether." Wendy Steiner, "We Are All Murderers Now" "Because in capital punishment the action or deed is extreme and irrevocable, there is pressure placed on the word-the interpretation that establishes the legal justification for the act. At the same time, the fact that capital punishment constitutes the most plain, the most deliberate, and the most thoughtful manifestation of legal interpretation as violence makes the imposition of the sentence an especially powerful test of the faith and commitment of the * We are grateful for helpful comments provided by Lawrence Douglas, Thomas Dumm, and Richard Moran. Published by Yale Law School Legal Scholarship Repository, 1995 1 Yale Journal of Law & the Humanities, Vol. 7, Iss. 2 [1995], Art. 5 Yale Journal of Law & the Humanities [Vol. 7: 397 interpreters.... Capital cases, thus, disclose far more of the structure of judicial interpretation than do other cases." Robert Cover, "Violence and the Word" "Television's principal compulsion and major attraction comes to us as the relation to law. As that which is thematized compulsively, the relation to law is at once there and not there. . .. This relation to law which television compulsively repeats as its theme is simultaneously presented as the unthematizable par excellence.... Avital Ronell, Finitude'sScore "Television can ... be understood as the popular vehicle for the democratization of Nietzsche's knowledge concerning the death of God." Thomas Dumm, united states I. INTRODUCrION Last year thirty-one people were executed in the United States. One was gassed, six were electrocuted, one was hanged; the rest were put to death by lethal injection.' While all other constitutional democracies have abandoned capital punishment, the United States tenaciously clings to it.' We use the death penalty as retribution, but also, as Michel Foucault reminds us, to respond to affronts to our legal regime itself. 3 However, particularly in a constitutional 1. These figures were provided by the National Coalition to Abolish the Death Penalty. 2. See Franklin Zimring and Gordon Hawkins, Capital Punishment and the American Agenda (Cambridge: Cambridge Univ. Press, 1986). 3. Michel Foucault, Discipline and Punish. The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1977). Foucault writes that "Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince.... Punishment, therefore, cannot be identified with or even measured by the redress of injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime." Ibid., 47-48. Along with the right to make war, the death penalty is, in some accounts, the ultimate measure of sovereignty and the ultimate test of political power. See Elaine Scarry, "The Declaration of War Constitutional and Unconstitutional Violence," in Law's Violence, ed. Austin Sarat and Thomas R. Keamns (Ann Arbor Univ. of Michigan Press, 1992). "Political power," John Locke wrote, "[is] the right of making laws with penalties of death .... John Locke, The Second Treatise of Government (Indianapolis: Bobbs-Merrill, 1952), [chap. 1, #2, p. 4]. Others note that "the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life." George Kateb, The Inner Ocean (Ithaca: Cornell Univ. Press, 1992), 192. https://digitalcommons.law.yale.edu/yjlh/vol7/iss2/5 2 Sarat and Schuster: To See or Not To See 1995] Sarat and Schuster 399 democracy, the deliberate taking of life as an instrument of state policy is an enormous evil.4 A death penalty democratically administered implicates us all as agents of law's violence. An execution, as Wendy Lesser argues in Pictures at an Execution: An Inquiry into the Subject of Murder, is "a killing carried out in all our names, an act of the state in which we by proxy participate, it is also the only form of murder that directly implicates even the witness, the bystanders."' The fact that the state takes life and the way in which it takes life insinuate themselves into the public imagination, even as the final moments of executions are hidden from public view. This particular exercise of power helps us understand who we are and what we as a society are capable of doing. As Lesser skillfully documents, the largely, though incompletely, hidden moment when the state takes life 6 precipitates, in an age of the hypervisual, a crisis of representation. Historically executions were, in Foucault's words, "[m]ore than an act of justice"; they were a "manifestation of force." 7 Executions always have been centrally about display-in particular the display of the awesome power of sovereignty as it was material (...truncated)