"Nothing is so faulty as those laws which correct faults" (Bourdieu, 1997, p. 94).
The execution of prisoners receives consistent criticism. Not only does the United States lock up more people than the rest of the known world, we also stand alone as the only member of the G8-the eight nation states with the highest national economy (Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, and the United States)--to permit the execution of prisoners (Amnesty International, 2012). Approximately 3,100 of the people incarcerated await capital punishment, with less than 2% of capital offenders executed in 2011 (Snell, 2013). For the past 11 years the United States has experienced a downward trend with fewer people being sentenced to death and more and more states repealing their death penalty laws. Currently 18 states and the District of Columbia do not allow for capital punishment. Regardless of the downward trend both in the number of people incarcerated and executed, a significant number of people live behind bars-with a considerable number of them awaiting death.
The reasons for criticism vary. Activists criticize racial discrimination in execution sentencing [Furman, 1972), as well as the execution of minors [Roper, 2005) and the mentally ill [Atkins, 2002). The possible execution of innocent persons also generates criticism, with the Innocence Project (2015) reporting 324 post-conviction DNA exonerations since the first one in 1989-20 of which involved persons sentenced to death. Recent developments have resulted in prisons unable to obtain drugs used to administer lethal injection, leading to renewed discussion about the viability of lethal injection as a method to facilitate death (Sanburn, 2013). The inability of prisons to obtain the drugs necessary for existing protocols has led to new protocols largely undisclosed and untested, and an increased number of "botched" executions (Goodwyn, 2015). Communication scholars Stephen Hartnett and Daniel Larson (2006) conclude "seeking the death penalty plays a corrosive role within the US justice system" (p. 268), Fordham University law professor Deborah Denno characterizes the state of capital punishment as in "absolute chaos" (Levitt & Feyerick, 2013), and Arkansas Attorney General Dustin McDaniel finds the practice "completely broken" (Volz, 2013).
Within the context of global and domestic pressure to end the practice of capital punishment, argumentation scholars are invited to ask: How is the practice of capital punishment justified in a developed, democratic system? What logical purpose does capital punishment serve? What symbolic action does capital punishment perform in a governmental system that celebrates rhetorical practice by basing so many of its governmental systems upon the deliberative processes (e.g., through election campaigning, legislative debates, and trials and appeals) and unobstructed channels for speech and expression?
This essay argues that the metaphor body-as-gauge guides capital punishment discourse, from advocates who protest the death penalty to the protocols employed to administer the punishment and from the government that enacts the penalty to appellate judicial opinions that determine its constitutionality. The body-as-gauge provides auditors an instrument through which to evaluate how pain and suffering are processed through the corporeal form of the accused. The body-as-gauge does not deter crime; the body-as-gauge evaluates method of punishment. Notable deaths demonstrate how, when the body-as-gauge reads suffering as high, the government abandons certain methods of punishment or hides the mechanisms of death. The sense of suffering read upon the bodily meter requires the judicial branch to consider the Eighth Amendment mandate that punishment not be cruel and unusual. Yet the body-as-gauge extends beyond the material borders of the accused to take up the question of how the body politic responds to different forms of execution. Evolving standards of decency have resulted in certain bodies-as-gauge forbidden from use in the machinery of death.
This essay examines how the body-as-gauge metaphor is constructed and used in various forms of public discourse, from mass media to Supreme Court opinions. The Constitution directly allows for the termination of life-after due process-but how to implement a death sentence remains uncertain. Interpreting the clause differently, justices disagree about what constitutes cruel and unusual punishment. Proponents of the death penalty argue the Constitution permits capital punishment, and that various forms of execution are neither cruel nor unusual. Advocates of abolishing the death penalty assert the sentencing process is discriminatory and society has evolved to the point that sentencing someone to death is cruel. The body-as-gauge metaphor organizes and guides arguments about what constitutes a constitutional execution.
Any consideration of the machinery of punishment must begin by considering Foucault's important work on the subject. In Discipline & Punish (1995), Foucault (1995) explains:
The punishment-body relation is not the same as it was in the torture during public executions. The body now serves as an instrument or intermediary: if one intervenes upon it to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as a right and as property. The body, according to this penalty, is caught up in a system of constraints and privations, obligations and prohibitions. Physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights, (p. 11)
Foucault's archeology of history describes how punishment became internalized within the body of the convicted person as punishment shifted from public spectacle of torture to private forms of discipline. Foucault's reading focuses on imprisonment of the body, more than the execution of the body. As the contours of execution changed (from public to private) the function of the imprisoned body altered. According to Foucault, public executions invited visible suffering on the part of the accused. Once death became private, bodily pain was not to be included as a precursor to death. The adoption of lethal injection protocols in the late 1970s medicalized death. Any sign of pain during execution became, to critics of capital punishment, provides an indication that cruel and unusual punishment occurred. Thus, the body still serves as an instrument, as Foucault indicated in the above passage, but not one of suspended or denied rights of a body imprisoned. The in-process-of-being-executed body became the gauge of punishment.
The body-as-gauge metaphor reflects a machine metaphor of political systems. The machine metaphor is passive, not active. Machine metaphors construct government as efficient and rational (Saccaro-Battisti, 1983). The metaphor has power because of its reliance on nineteenth century Newtonian theory, which tells us that actions are not dependent upon the whim and whimsy of fallible human beings (Stelzner, 1965). When set in motion, the machinery of government acts on its own. Machines, however, can break down, corrode, grind to a halt, need to be fixed, experience gridlock, or run inefficiently. Machines have to be watched and maintained to remain operational.
Within democratic societies, executing inmates became about protecting law-abiding citizens from criminals rather than deterring crime (Hartnett, 2010). Capital punishment acts as a form of social control, segregating society by disciplining different types of people according to their identity, economics, religion, and politics. According to Hartnett (2010), contemporary executions "entail the production of public gestures, signs, and messages for those who have witnessed the violence," (p. xiv) displaying the costs of violating communal norms. The convicted body-as-gauge communicates to the body public what people and actions society writ large deems unacceptable. The executed body-as-gauge proclaims that government fulfills its function of protecting citizens from criminals by enacting justice.
Law as a form of social control, however, is given meaning only through narrative structure that envisions a nomos-a normative community. According to legal theorist Robert Cover (1983), law and narrative cannot be separated. In other words, the ways we talk about democracy, crime, and punishment in the United States constitutes our values that become manifest in our laws and legal principles. Cover (1983) explains, "The codes that relate our normative system to our social constructions of reality and to our visions of what the world might be are narrative" (p. 10). Reflecting our values, identities, and histories, narratives direct how we create and regulate community. Thus, the body-as-gauge tells us about more than the pain and suffering of the offender; the body-as-gauge assesses the state of the body politic. Low (to no) levels of pain and suffering during execution indicate that we are a law abiding and just society, whereas high levels suggest that the mechanisms of our government are cruel and unusual and that we, as citizens, are inhumane and barbarous.
Within the machinery of death, the body-as-gauge indicates whether the process functions as it was designed. From accounts of executions published in newspapers and magazines, we learn that the body-as-gauge should not read high levels of pain. Excessive suffering, observed via visual markers, signifies cruel and unusual punishment. The body-as-gauge should be easy to use, be somewhat uniform, and operate for a limited time period.
Executions use the body-as-gauge to assess the pain, if any, experienced during execution. The recent string of botched lethal injection cases serves as a fitting example. In The...