Killing Times

The Temporal Technology of the Death Penalty

David Wills

• Publisher: Fordham University Press
• Year: 2019
• ISBN:
  9780823283507
• Edition: 1
• Topic: Philosophy
• Subtopic: Deconstruction in Philosophy

Killing Times begins with the deceptively simple observation—made by Jacques Derrida in his seminars on the topic—that the death penalty mechanically interrupts mortal time by preempting the typical mortal experience of not knowing at what precise moment we will die. Through a broader examination of what constitutes mortal temporality, David Wills proposes that the so-called machinery of death summoned by the death penalty works by exploiting, or perverting, the machinery of time that is already attached to human existence. Time, Wills argues, functions for us in general as a prosthetic technology, but the application of the death penalty represents a new level of prosthetic intervention into what constitutes the human. Killing Times traces the logic of the death penalty across a range of sites. Starting with the legal cases whereby American courts have struggled to articulate what methods of execution constitute "cruel and unusual punishment, " Wills goes on to show the ways that technologies of death have themselves evolved in conjunction with ideas of cruelty and instantaneity, from the development of the guillotine and the trap door for hanging, through the firing squad and the electric chair, through today's controversies surrounding lethal injection. Responding to the legal system's repeated recourse to storytelling—prosecutors' and politicians' endless recounting of the horrors of crimes—Wills gives a careful eye to the narrative, even fictive spaces that surround crime and punishment.Many of the controversies surrounding capital punishment, Wills argues, revolve around the complex temporality of the death penalty: how its instant works in conjunction with forms of suspension, or extension of time; how its seeming correlation between egregious crime and painless execution is complicated by a number of different discourses. By pinpointing the temporal technology that marks the death penalty, Wills is able to show capital punishment's expansive reach, tracing the ways it has come to govern not only executions within the judicial system, but also the opposed but linked categories of the suicide bombing and drone warfare. In discussing the temporal technology of death, Wills elaborates the workings both of the terrorist who produces a simultaneity of crime and "punishment" that bypasses judicial process, and of the security state, in whose remote-control killings the time-space coordinates of "justice" are compressed and at the same time disappear into the black hole of secrecy.Grounded in a deep ethical and political commitment to death penalty abolition, Wills's engaging and powerfully argued book pushes the question of capital punishment beyond the confines of legal argument to show how the technology of capital punishment defines and appropriates the instant of death and reconfigures the whole of human mortality.

CHAPTER 1

Machinery of Death or Machinic Life

In February 1994, the lone dissenting voice of Justice Harry A. Blackmun expressed from the bench of the U.S. Supreme Court opposition as a matter of principle to the constitutionality of capital punishment in America. In Callins, Blackmun famously declared:

On February 23, 1994, at approximately 1:00 A.M., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.…

Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all … and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.…

Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty … the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.¹

As Blackmun states, in the twenty-odd years since Furman (1972) had struck down capital punishment and Gregg (1976) had reinstated it, he had been struggling—in complicated ways to which I shall return—with the question of the death penalty’s constitutionality.² When he dissented in 1994, the Court’s two reliable abolitionists, Justices Brennan and Marshall, were no longer there to accompany him, having retired in 1990 and 1991 respectively. Blackmun would himself retire from the Court a few months after Callins, having served for nearly twenty-four years following his appointment in 1970 by Richard Nixon. It would take another fourteen years for something of his frustration to be expressed once again, in somewhat muted form, by Justice John Paul Stevens—who nevertheless found his hands tied and so concurred—in Baze (2008).³ Stevens in turn retired in 2010. It would take another seven years, twenty-one years after Callins, for full-fledged statements on the unconstitutionality of the death penalty to form the basis of the dissenting opinion by Justice Breyer, joined by Justice Ginsburg, in June 2015 in Glossip.⁴

In this chapter I focus, however inexhaustively, on that evolution of challenges to the constitutionality of the death penalty. My discussion will concentrate on the Eighth Amendment prohibition against cruel and unusual punishment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Briefly, the major history of Supreme Court deliberations concerning Eighth Amendment defenses in capital cases begins in the context of Utah’s introduction of a firing squad in 1879, followed by New York State’s use of the electric chair in 1890. Two important noncapital cases, Weems in 1910 and Resweber in 1947, revived the debate, which came to be presented as a civil rights issue in the 1960s, leading ultimately to Furman, which ruled against the death penalty in 1972. That decision caused states to overhaul their statutes both in terms of amending trial and sentencing practices and in seeking demonstrably painless methods of execution. The subsequent reforms were considered adequate by the Supreme Court majority in Gregg, at which point the tinkering that Blackmun speaks of began in earnest, continuing still: through Callins (1994) and, among other cases, Baze (2008) and Glossip (2015).

Before returning to discuss further the issues—especially issues of temporality—pertinent to those cases, I wish to underscore another element of Blackmun’s Callins dissent, which relates differently but no less centrally to the ideas I will develop. The catchphrase that his opinion has made famous—“I no longer shall tinker with the machinery of death”—assumes a necessary link between capital punishment and a cruelty or inhumanity that works through the schematics or thematics of a mechanical operation. The presumption is that whereas death kills, a machinery of death, a death-dealing machine, a technological apparatus, kills inhumanly and therefore inhumanely. To paraphrase: Intravenous tubes carry the instrument of death, a toxic fluid, into a man strapped to a gurney … the wheels of justice churn, the Court abdicates its responsibility, [but] I no longer shall tinker with the machinery of death. Blackmun paints a stark contrast between, on one side, human beings, the witnesses, a man, and on the other, an impersonal state with its instruments, justice with its wheels, death via machines. According to his logic, that of a well-known and well-worn mythology and ideology—with which it is difficult not to be in sympathy, but whose complexities nevertheless call for analysis—cruelty follows where human agency and responsibility cede ground to a type of implacable mechanistic automatism.⁵ While I therefore concur fully with the sentiment expressed by Blackmun regarding the machinery of state killing, it will be my contention that the specific technological intervention into life in order to end it that is constituted by the death penalty does not simply bring about the mechanical interruption of life, but in fact stages the unstable and problematic relation that life will always have maintained with the machine.

Specifically, a primary, if not the primary relation between human life and technology is established by means of time, by means of time as something that is in itself technological. It is not the explicit focus of Blackmun’s argument, but in the jurisprudential history to which he refers—to accentuate his own struggle with the machinery of death with which he no longer will tinker—time is of paramount, if not always explicit interest. That interest begins with his very mention of a twenty-year endeavor, and it is reinforced by the use of the verb “tinker,” meaning not just “to work upon a thing by making small repairs” or “to work in a bungling way,” but also “to putter aimlessly,” in other words to dally or waste one’s time in the effort. Beyond that, however, time is the inescapable index of cruelty from Weems (1910) to Glossip (2015): fifteen years in chains for defrauding the government in the first case, time that does or does not allow pain to be felt in the second. Thus, if we were to follow in reverse the generational development of constitutional challenges to the death penalty we would have to go back through Resweber in 1947, which is twenty-five years prior to Furman (1972), and before that to Weems in 1910, thirty-seven years before Resweber, and indeed, twenty to thirty years before that, to Kemmler and Wilkerson.⁶

Within that history, the machinery of death appears to function, or malfunction, according to three principles: There is a threat of breakdown producing pain and cruelty, the risk of a vulnerable human being left to suffer because of an unreliable machine; there is a principle of perfectibility—a progressively more reliable and more humane machine—that answers to the doctrine of evolving standards; and there is supervisory oversight deemed acceptable or unacceptable in proportion as it cedes to nonsovereign, international pressure. Throughout that history, attention to time will be a constant, beginning in a not insignificant manner with the time of history, especially the history of the West in the post-Enlightenment period. During that period of some two and a half centuries, the concept of capital punishment will have explicitly separated itself from the practice of torture. In rejecting torture, the death penalty will become a function of the recognized human right not to have pain inflicted, either for its own sake or for the sake of some reason of state; the right not to have pain inflicted and the right not to have to endure pain, implicitly defined thereby through the concept of duration, the passage of time. In the attention paid to different methods of execution such as are periodically reviewed by this or that Supreme Court Justice, the background or foreground question is consistently some idea of time. As Kant argues in his 1781 Critique of Pure Reason—one of the founding texts of the Enlightenment—time is sensibility, perhaps we could say “feeling” itself: “time is … a pure form of sensible intuition.… All objects of the senses are in time, and necessarily stand in relations of time.… If one removes the special condition of our sensibility from it, then the concept of time disappears.”⁷

The Court’s first important decisions regarding the Eighth Amendment in the context of the death penalty arose precisely from the shift away from hanging, which was the preferred method of execution in the United States throughout much of the nineteenth century. When called to consider the constitutionality of execution by firing squad in Wilkerson, the Court referred to Blackstone’s Commentaries on the Laws of England, which mentioned how “terror, pain or disgrace” could be superadded to punishment for “very atrocious crimes,” leading to such cases as being “emboweled alive, beheaded, and quartered … public dissection … burning alive.” However, those excesses, to the extent that they “savored of torture or cruelty,” were mitigated by the “humanity of the nation” (Wilkerson, 135). That humane doctrine is what guided the Court in concluding that although such “punishments of torture” (ibid.) are forbidden by the Eighth Amendment, the firing squad, used for example by the military, is acceptable. The point is explicitly made, however, that “difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted” (135–36). Simply put: How much punishment is permissible, and precisely when—or after how long—does it become cruel? Such a difficulty, which I shall persistently take to be a difficulty with time, and—more especially as history progresses—with the instant, remains to this day.

The problem of determining just how much pain or suffering the Constitution allows returns very soon thereafter, with New York State’s introduction of electrocution in 1890. Though the case of the first convict condemned to that form of execution, William Kemmler, was decided less on the question of the Eighth Amendment than over the right of New York State to decide its own standards and forms of punishment, the cruelty issue nevertheless came into play in explicit terms. The New York Court of Appeals had determined that electrocution “must result in instantaneous, and consequently in painless death” (Kemmler, 443–44, my emphasis). In that respect, it was in agreement with the intent of the governor, who, in his message to the legislature on January 6, 1885, expressed a desire to move beyond the “present mode of executing criminals by hanging [that] has come down to us from the dark ages” in favor of “a means for taking the life of such as are condemned to die in a less barbarous manner” (444); as a result, he appointed the commission that would subsequently find electrocution to represent precisely the desired advance out of barbarism.⁸

While seconding the New York Court of Appeals, the Supreme Court nevertheless saw fit to refer to Wilkerson, and it quoted in particular the difficulty just mentioned of “defin[ing] with exactness the extent” of the Eighth Amendment provision. It added: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life” (447). Kemmler decides, therefore, that death itself is not cruel, but that a lingering death would be; mere extinguishment of life is constitutionally permissible, and a supposed instantaneous death by electrocution fulfills that condition. The difficulty thus moves from the broad question of defining what is cruel and unusual to unending debate about how to mechanically induce an instantaneous death. Once Justice Brennan contends in Furman that “death is an unusually severe punishment, unusual in its pain, in its finality, and in its enormity.… It appears that there is no method available that guarantees an immediate and painless death” (Furman, 287, my emphasis), the efficacy of technology has folded into it—as if it didn’t always—the matter of speed as a function of time. Technology in general is, after all, about nothing more than gaining speed and saving time, from the first stones for hewing, and flints for cooking, to the memory of a computer or bandwidth of a server.

Hanging had been seen as an advance over methods of execution that involved bloodshed—an attendant question that I return to in a later discussion—but it came to be considered “barbarous” in comparison to electrocution, and hence a failure when it came to the question of speed. The improvement represented by electrocution resides explicitly in its instantaneity. Yet, by presuming to close off discussion concerning the definition of “cruel and unusual,” introducing instead the concept of the instant, Kemmler in fact opens an insoluble debate that returns in Glossip 125 years later. How instant is instant? If lingering, torturous death can be superseded by hanging, and hanging can be superseded by the presumed instantanization of electrocution, and electrocution can then be superseded by lethal injection, at what point will the death penalty have arrived at the perfection it seems in this way to seek? How, in that context, will the choice of midazolam over sodium thiopental as the first, sedating drug of a lethal cocktail, as debated in Glossip, be able to refine the instant of death? We can therefore say that the same temporal perfectibility of capital punishment continues to be posited, as an argument against its cruelty, from Resweber to Baze and Glossip. And the same frustration concerning the inability to bring that debate to a close infects not only questions attending this or that method of execution but also the status of the death penalty vis-à-vis the Eighth Amendment. When Stevens concurs with the majority to reject the Baze petitioners’ arguments against the cruelty of Kentucky’s concoction of sodium thiopental, pancuronium bromide, and potassium chloride, he nevertheless offers this wistful assessment: “When we granted certiorari in this case, I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not.… Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol … but also about the justification for the death penalty itself” (Baze, 71).

The next important case after Kemmler was Weems, in 1910. It is, of course, a strange bedfellow to those capital cases, for it is not about the death penalty; however it is all about time and the possibility of pain that attends the duration of a punishment. In fact, it is striking that the Supreme Court allows ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Epigraph
• Introduction
• 1. Machinery of Death or Machinic Life
• 2. The Time of the Trap Door
• 3. The Future Anterior of Blood
• 4. Spirit Wind
• 5. Drone Penalty
• 6. Lam Time
• Appendix: U.S. Supreme Court Cases Cited
• Acknowledgments
• Notes
• Index