Scalia’s rebuttal of Blackmun’s dissent in Callins relies in part on the force of graphic visuality, even if it be expressed in words or as part of a narrative. The concluding paragraph of his concurring opinion opposes, to the “poignancy” of Blackmun’s description of a convicted murderer dying by lethal injection, the facts of the murder in question in Callins, that of “a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death by injection which Justice Blackmun describes looks pretty desirable next to that” (Callins, 1142). Scalia then goes on to match Blackmun’s poignancy against another case “which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional,” that of “the 11-year old girl raped by four men and then killed by stuffing her panties down her throat,” adding, “how enviable a quiet death by lethal injection compared with that!” (1143)
As it happens, history shone a different light on the horrific force of Scalia’s reproach. On June 4, 2015, more than twenty years after his Callins remarks, and some eight months before Scalia’s death, the two half-brothers convicted of the murder of the eleven-year-old were pardoned and released when DNA evidence found on the scene linked the crime to another man. Henry McCollum and Leon Brown, respectively aged nineteen and fifteen at the time of the killing, and both intellectually disabled, had spent more than thirty years in prison.1
Soon after McCollum was pardoned, however, Glossip became the context for a similarly scopographic scene. The primary weapon of Scalia’s concurring opinion—joined by Thomas—is sarcasm, and the rhetorical effect of his words is reinforced by the fact that, in a departure from usual practice, he saw fit to read his written opinion viva voce as part of the Court’s delivery of its judgment.2 His opening salvo: “Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed … come before this Court asking us to nullify their sentences as ‘cruel and unusual’ under the Eighth Amendment.… The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good” (Glossip, Scalia concurring, 1–2). And in closing, some six pages later, he insists: “Justice Breyer does not just reject the death penalty, he rejects the [Kantian] Enlightenment” (7). However, if dismissive sarcasm is Scalia’s primary weapon, he does include a sidebar image. In the sentence I just quoted (“Petitioners, sentenced to die for the crimes they committed … come before this Court asking us to nullify their sentences”), he adds, in parentheses, “including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby” (1).
Scalia gives us that single snapshot of the rape and murder of a baby—which can be compared to the rape and murder of an eleven-year old girl to which he drew attention in Callins—but the full graphic panorama is left to Thomas, who will write his own concurring opinion in Glossip, joined in turn by Scalia. Before coming to the precise terms of Thomas’s opinion, it is worth reflecting on the “silent” force of his words in contrast to vocal rhetoric of Scalia. Thomas, after all, is famous for his near seven-year silence during oral arguments presented to the Supreme Court, a silence broken on January 14, 2013, when, in a death penalty case, he joined in a joke—over whether a law degree from Yale or Harvard made one competent to be a capital case defender—by making an inaudible comment. Witnesses determined at least that the comment was something other than a question addressed to the petitioner’s lawyer. Following that, he fell silent again, and by February 22, 2014, his taciturnity, tilted chair, and ceiling-staring was the object of a Jeffrey Toobin New Yorker article whose title called the behavior “disgraceful,” and whose concluding paragraph returned a verdict of “petulance” and called Thomas’s behavior “ludicrous.”3
The time of Thomas’s arousal or goading to speech and action such as is evidenced in Glossip, its maturing over his twenty-five years on the Supreme Court, could be put into apposition with his long silence in the face of his accusers during the three and a half month run-up to his bitter Senate confirmation battle in 1991, a silence that he suddenly transformed into a defiant characterization of the whole process as “a high-tech lynching for uppity blacks,” conjuring an image like the Lawrence Beitler photograph of racist summary justice victims Tom Shipp and Abe Smith, swinging from a tree in Marion, Indiana, in 1930, and the abyss of horror in and behind the faces of the white crowd captured by the camera.4
In Glossip, therefore, Thomas’s description relies on a certain visual eloquence in order to express his own disdain for fellow justices’ questioning of the constitutionality of the death penalty. His reasoning seems to be as follows: If rational argument fails to prevent such constitutional activism, perhaps a graphic image will work better. If Kant is not persuasive enough, let these images enlighten you. That would be the essence of his riposte to “Justice Breyer’s assertion … that the death penalty in this country has fallen short of the aspiration that capital punishment be reserved for the ‘worst of the worst’ ” (Glossip, Thomas concurring, 2). After rejecting “pseudoscientific” attempts to determine which crimes are egregious enough to merit death, rejecting “cardboard stereotypes” and “cold mathematical calculations” (6), Thomas will instead give us raw images and so demonstrate how “in my decades on the Court, I have not seen a capital crime that could not be considered sufficiently ‘blameworthy’ to merit a death sentence” (ibid.). He will give us raw images that represent a “small sample of the applications for a stay of execution that have come before the Court this Term alone” (ibid.). So he begins, and for close to half of his opinion exposes us to his litany or gallery of horrors. I will refrain from “exposing” here the images themselves, for they are truly horrific. Thomas makes it very hard to “watch.” In the course of his relentless screening we are again privy to rape and murder, of adults and children, to various extremes of violence and abuse in the commission of those crimes, in terms much more stark than those of Scalia. For Thomas is eager to impress on the reader and on the jurisprudential legacy how self-evidently justifiable capital punishment is, should the image be graphic enough. We should even understand it to be justifiable for a murder committed by a juvenile (which, as we have seen, the Court had outlawed in Roper in 2005), and, on this side of murder, for the crime of rape (rejected in Coker in 1977, and again in Kennedy in 2008).
What exercises both Scalia and Thomas, and each of them in turn, is the fact that, despite a 5–4 majority opinion that rejected the claim by twenty-one death-row inmates that the Oklahoma protocol violated their Eighth Amendment rights, justices in the minority still saw fit not only to dissent on the specific question of the cruelty (and unusual punishment) inflicted by the drugs, but, in the case of the dissenting opinion written by Breyer and joined by Ginsburg, also to call into question in both general and specific terms the constitutionality of the death penalty.
In a dissent that may well become as famous as Blackmun’s 1994 refusal to any more “tinker with the machinery of death” (Callins, 1145), Breyer wrote that after twenty years experience on the court—he was nominated by President Clinton precisely to replace the retired Blackmun—he had come to the conclusion that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment’ ” (Glossip, Breyer dissenting, 2). In more than forty pages of text, Breyer sets out: first, three reasons why capital punishment is cruel—because it is unreliable, arbitrary, and involves excessive delays; second, why, because of those delays, conditions of death-row (usually solitary) confinement are unacceptable; third, how those delays rob the penalty of both deterrent and retributive effects; fourth, how the increasing nationwide decline in applying the death penalty makes it not only cruel but also unusual.
The Court’s two most conservative justices, by contrast, are adamant that there is no doubting the constitutionality of the death penalty. Scalia holds that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates” (Scalia concurring, 2). Thomas says, “No more need be said about the constitutional arguments on which Justice Breyer relies, as my colleagues and I have elsewhere refuted them” (Thomas concurring, 1–2). So if there is no doubt, how is it, they obsess, that every twenty years or so one or another of their brethren returns to pose the same question?
How is it that when it comes, for example, to deciding a chemical question about the action of a 500-milligram dose of midazolam on the body—the scientific question that is the strict focus of Sotomayor’s dissent—the broad question of constitutional principle keeps creeping back in? How can someone like Breyer not understand what the Fifth Amendment resolved, by presuming it, in 1791, as has been repeated numerous times since? How can he not “see” reason? Therefore, Thomas seems to think, only if I am able to confront the public with the naked cruelty of the criminal acts I so vividly, so visually describe, will the Court stop, as he hopes in his concluding sentence, “making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means” (Thomas concurring, 10).
Now, the vivid description of crimes is necessarily part of the judicial process, and the distinction between “cold hard facts” and graphic hyperbole is susceptible to abuse by prosecution and defense alike. Those descriptions rely in general terms on the rhetoric of narrative, and indeed, the importance of “telling a story” that a jury will find plausible is a time-honored courtroom strategy on both sides.5 But as I wish to argue in this chapter, the descriptions that figure in accounts of gruesome crimes such as those provided by Thomas and Scalia are designed to function as particularly photographic images. They present to our imagination, in realist visual terms, acts and events that we precisely could not or should not bare to look at. But beyond that, photographic realism in turn relies on the reduction of time to an appropriable instant, on the ability to capture the very instant of reality that is depicted. It therefore mirrors the quest for an instantaneous death penalty that was examined in the previous chapter, and, as we shall see in subsequent discussions, operates sometimes in concert with, sometimes in contrast to other discursive effects relating to the death penalty. The logic at work here is as follows: One expects death penalty justice to be seen to be done both through the idea that the punishment fits the crime, and by the efficiency and efficacy of the execution itself. On one side there would be an egregious criminal act, on the other an impartial and dispassionate justice system that puts the criminal to death; jurists are therefore led to contrast the bloody cruelty of the criminal act with the painless instant of execution. When that contrast seems no longer operative—for example when the dissenting opinions in Glossip argue that Oklahoma’s lethal injection protocol is, in spite of all appearances and expectations, cruel enough to be unconstitutional, implying by extension that an execution might be causing the criminal to suffer as the victim(s) did—it is as if visual proof is required, leading a Scalia or Thomas to show it like it really is by producing even more graphic images. In my view, if the graphic force of those images is able to succeed it is only because our culture subscribes to a visuality that is essentially photographic, determined in turn by photography’s conception of instantaneity. As I seek to show in what follows, the evolution of the modern practice of the death penalty as an evolution toward a rapid, and supposedly humane taking of human life, comes therefore to be interwoven with the development of photographic visuality.
The death penalty’s first modern moment of mechanical instantaneity arrives with the introduction of the trap door gallows, even if the precise date of that innovation remains imprecise. In his comprehensive history of capital punishment in the United States, Stuart Banner records that “Boston had such a device as early as 1694,” seeming to predate the use of the trap door scaffold in England by several decades, London’s Newgate Prison having performed the first executions on its famous “New Drop” gallows in 1783.6 But whatever the precise chronology of that technological evolution, it is clear that by the end of the eighteenth century the trap door had come to be a part of the generalized application of the gallows as the preferred form of capital punishment in the Anglo-American world.
Banner describes the steps in that evolution of technological innovation in respect of hanging. First performed from the branch of a tree, then, as of sometime before 1650 in Boston, by means of a form of scaffold, the practice nevertheless had to contend with numerous botches:
A hanging required some method of dropping the condemned prisoner from a height. In the seventeenth century the drop was commonly achieved by means of a ladder placed against the tree or the gallows. The prisoner, with a rope tied around his neck and his hands tied, would climb the ladder. When all was ready, the executioner would simply turn the ladder away, depriving the prisoner of support. A person hanged in this manner was said to be “turned off.”7
The method was not without its shortcomings: Dorothy Talbye swung back and caught the ladder with her legs; Cotton Mather records how Mary Martin swung long enough to twice acknowledge her attempted infanticide and “was turned off the Ladder Twice, before she Dyed.”8 The ladder was later replaced by a horse-drawn cart that was driven off at the appropriate moment, and then by a fixed scaffold with a trap door that opened under the victim. Henceforth, this technological innovation—as always, essentially that of speed—allowed the condemned, rather than being turned off, to be “launched into Eternity.”9 Nevertheless, the botches continued, and prisoners who were supposed to die from an instantaneous fracturing of the vertebrae and severing of the spinal cord were instead left swinging until they asphyxiated some minutes later, or in some cases, if the drop was too great, were decapitated.
The introduction of the trap door is thus a pivotal or hinge moment in the history of the death penalty, a pivotal moment in its automatic mechanization. But the introduction of the trap door also serves as a hinge moment connecting different regimes of visibility within the practice of capital punishment. In Discipline and Punish, Michel Foucault offers a gripping spectacle of orgiastic cruelty that marked the execution, for the attempted regicide of Louis XV, of Robert-François Damiens in the Place de Grève in Paris in 1757. A large crowd gathered for the event, including Casanova, who had arrived in Paris the day of the assassination attempt. He rented a ringside window and allowed his friend to make something of a seduction party of the execution, as he recounts in his memoirs.10
The official sentence provided for Damiens’s punishment was as follows:
on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and body consumed by fire.11
But that description of Damiens’s sentence sounds almost anodyne when compared with the monumental botching of the execution itself—particularly the quartering—such as Foucault documents, from the record, in the opening pages of Discipline and Punish.12 For it had been almost 150 years since the previous such execution, carried out on the assassin of Henri IV, François Ravaillac, in 1610. Ravaillac died in an orgy of perhaps greater excess than Damiens by supposedly having his body torn to pieces for onlookers’ souvenirs, portions of it perhaps having been eaten. That specter of a cannibalistic theatrical ritual returns in certain royalist accounts, no doubt exaggerated, of the execution of Louis XVI in 1793, which portends the resilience of forms of ritualistic spectacle in the modern period of the death penalty.13
As we have already seen, the 1791 Bill of Rights, and in particular the Eighth Amendment of the American Constitution, determined precisely—as did the French Revolution, however perverse the excesses of the Terror—that the death penalty should be performed in such a way as not to inflict such extreme suffering; in no way should it amount to torture. However, the tradition of spectacle had, since colonial times, brought thousands, perhaps tens of thousands of onlookers to witness executions. In 1774, Banner reports, the execution of “Daniel Wilson, a Providence rapist, drew more than twelve thousand … nearly three times the population of Providence.”14 Those spectacles would continue into the nineteenth century and in certain states public executions lasted well into the twentieth century. The last such event in the United States was the execution of Roscoe Jackson in 1937, witnessed by several hundred people who crowded into the small town of Galena, Missouri. Those able to pay the admission fee were allowed into the stockade surrounding the gallows; others crowded outside. It is reported that a number of spectators left the scene with a souvenir piece of the rope used for the hanging. A year earlier, Rainey Bethea, a black man, was hanged (judicially, for we must not forget the whole other history of lynching, as discussed in Chapter 5) for the rape of a white woman, before an audience of perhaps 20,000 in Owensboro, Kentucky.15 But already in the first half of the nineteenth century movement began toward a less public death penalty such that, according to Banner, “between 1830 and 1860 every northern state moved hangings from the public square into the jail yard.”16
It would be difficult to determine the exact correlation between a death penalty that was performed more efficiently thanks to technological innovations like the trap door, and a death penalty that was increasingly removed from public view, if never altogether from sight. The requirement of any judicial death penalty is that it be somehow visible, seen by more witnesses than simply the executioner. Nevertheless, one can surmise that attempts to rationalize and “anesthetize,” and especially to expedite the fact and act itself of putting to death, led the public, and the judiciary, to concentrate on speed and efficacy according to the rationale that continues to the present day. From at least the end of the eighteenth century we have come increasingly to expect and seek an ever more certain and rapid death for the criminal sentenced to die. Hence the idea developed of a better-oiled killing machine in parallel with a desire for a less cruel spectacle, and eventually that led to the desire that there be no public spectacle at all, at least not in the form of a leisure activity and spectator sport that, at its height, would draw thousands, even tens of thousands of onlookers.17
Another historical and technological evolution, however, overlaps within that same time frame of the first half of the nineteenth century, making the trap door moment something of a “shutter” moment. That evolution began with Niépce’s efforts at heliography in about 1816, culminating in what is now recognized as the first photograph about ten years later, followed by the development of the daguerreotype, which led to widespread photographic practices starting in the mid-1830s (until photographic plates were revolutionized in turn by Eastman’s film in 1888–89). Photographic innovation progressively becomes, and more and more explicitly so, a matter of controlling the instant, and thanks to its capture of a single moment in time a particular visual concept of the instant enters the cultural consciousness. Thus, although the modernist, technologized, or mechanized death penalty begins with the invention of the trap door—not that the death penalty was ever other than technologized—it is rather the guillotine, with its more definitive and operationally effective “shutter,” that will, beginning in 1792, assume control of the instant of execution, reinforcing it as an instant of technologized visuality.
Before coming to that moment I wish to draw attention to a particular prephotographic demonstration by example from Puritan times, namely the execution sermon. It provides an uncanny reverse image of contemporary attempts, for example by Clarence Thomas, to reinforce with almost photographic vividness the criminal malfeasance of the worst of the worst. The execution sermon insists, by means of a different but comparable equation, and by means of a different medium, that the punishment fits the crime. As Benjamin reminds us in his seminal text, the mechanical reproducibility of the image does not begin with the photograph in the nineteenth century; photography is rather a radical transformative moment within a structure that might be called that of originary technological iterability: “Graphic art,” he writes, “was first made technologically reproducible by the woodcut.”18 As one might expect then, woodcuts, illustrated broadsheets, and drawn depictions of executions were relatively common throughout the eighteenth and into the earlier nineteenth century. But it was the combined illustrative and instructive power of the execution sermon that—in the Western country that preserves a postmodern death penalty—provided a special discursive context for those visual reproductions during the period of premodernist or pre-Enlightenment cruelty and spectacle. Examples of such sermons are recorded in America from 1638 to the late eighteenth century: “Printed versions of the sermons, confessions, and other gallows ephemera, which sold as pamphlets and broadsides on execution day and often contained woodcuts of the hanging scene, helped disseminate the message of the hanging through the crowd and across the region.”19 More than one such sermon might be delivered, either from the church pulpit—perhaps on the Sunday before the execution, and with the condemned person in attendance—or from the scaffold itself. They were, according to Ronald A. Bosco, “one of the principal examples of jeremiad form,”20 extending the moral example of the condemned person to a general warning about the declension of the Puritan polity. Bosco begins his essay with a detailed account of The Cry of Sodom Enquired Into, given by Reverend Samuel Danforth in the presence of Benjamin Goad, condemned for the “prodigious villany [sic]” of sodomy (punished as a capital crime for the last time in the United States in 1785),21 a crime narrativized by Danforth as follows (I abridge considerably):
He gave himself to Selfpollution [sic], and other Sodomitical wickedness. He often attempted Buggery with several Beasts, before God left him to commit it.… Being at length, by the good hand of God, brought under the Yoke of Government … he violently broke away … and shook off that Yoke of God, calling reproach and disgrace upon his Master. Having now obtained a licentious liberty, he grew so impudent … as to commit his horrid Villany in the sight of the Sun, and in the open field, even at Noonday.22
The execution sermon became the televangelical platform for diatribes on the wages of sin of which the execution itself was the stark illustration: listen here (to my warnings against an impure life); then look there (at the fatal punishment to which such a life leads). The jeremiad attracted a congregation that increased exponentially the number of souls that might attend any given Sunday church service. No less a figure than Cotton Mather thanked “a very strange Providence” for creating the circumstances for his preaching a sermon “whereat one of the greatest Assemblies, ever known in these parts of the World, was come together.”23 But the vast social networking potential of the execution spectatorship also favored a contagious discursive drift whereby the sermon expanded beyond the particulars of the crime being punished to encompass warnings against every imaginable evil, as in Thomas Foxcroft’s 1733 Lessons of Caution to Young Sinners: everything from ignorance and error, ungodly principles, profanity and irreligion, sensuality and vice, disobedience to parents, sins of pride, lying, rash anger, envy, malice, a spirit of revenge, self-murder, covetousness, a worldly mind, lasciviousness, uncleanness—“ye know that no whoremonger nor unclean person (whether fornicator, or adulterer, or effeminate, and abusers of themselves) have any inheritance in the Kingdom of God”—intemperance, gluttony and drunkenness, idleness, evil fellowship, carnal security, to hypocrisy.24 The proliferating illustrative potential of the sermon thus extended well beyond the visual specificity of the execution scene that it accompanied, which suggests its potential independence from the scene that the listeners were about to witness. On the one hand, they were being told not to commit the sins of the condemned person so as to avoid the punishment that was about to be meted out; on the other, their presence as a captive audience not likely to leave before the grand finale gave preachers ample opportunity to sermonize at will, to digress considerably from the simple allegorical reality of the scene of judgment. And that divergence of discourses mirrored a divergence of regimes of visibility, for what could be seen by a multitude swelling to thousands or tens of thousands was not, except for those in close proximity to the scaffold, illustrative in any direct sense. Indeed, those closer to the fringes would, literally or figuratively, be required to turn their backs on the spectacle of the execution itself, and, increasingly, find their entertainment in the generalized carnivalesque ambience, in diverse activities such as the very drunkenness and lesser or greater forms of debauchery that were typical objects of a sermon’s scathing diatribe. Casanova’s account of what took place in the crowded window space he had rented in 1757 has its echoes in various reports of hanging-day crowds in the United States into the nineteenth century—indeed all the way to the 1930s—by which time the paradoxes of the capital punishment carnival had become more evident.
Banner thus begins his chapter on the move away from public executions by giving two contrasting accounts by witnesses to a hanging in North Carolina in 1852. The first witness, a female farmer, tells of a town overflowing with people, how she pushed to the front of the crowd to secure a place near the gallows from where she heard the sermon—as well as back and forth shouting between the condemned man and witnesses who had testified against him—before seeing the execution itself. The second account is from a lawyer who writes to the woman he is courting, and tells disapprovingly of five thousand people gathered, half of whom were women; but he stays only to be edified by the sermon and leaves before the hanging itself. The farmer is swept up in the spectacle and participates in a discursive framework that retains as its centerpiece the visual event of the execution; the lawyer finds himself mingling with a crowd given over to various passions and much more in need of admonitions from a pulpit than the visual demonstration of the hanging itself, whose lesson tended to be lost in the general conviviality and its decidedly less structured discursive context. To the extent that the cohesiveness of hanging day was maintained by a strict allegorical adjacency between execution and sermon, and attended by a rapt audience, the spectacle functioned as intended. But once that cohesiveness began to be loosened, thanks on one hand to a sermon that digressed seemingly at will, on the other to a crowd that frayed and dissipated into various forms of intemperance, then the hanging no longer provided either the visual focus it presumed, or the concentrated instant of moral example that it similarly relied on. The death penalty seemed thus to lose its power of visual demonstration.
Foucault records a similar mechanism in his analysis of the birth of the prison, especially in describing the shift, from torture or torment (supplice) to punishment, to which I earlier referred. That shift is for Foucault a disappearance: “the disappearance of the tortured, dismembered, amputated body, symbolically branded on face or shoulder, exposed alive or dead to public view. The body as the major target of penal repression disappeared.”25 As a result, throughout the first half of the nineteenth century “punishment had gradually ceased to be a spectacle. And whatever theatrical elements it still retained were henceforth seen in a negative light.”26 That shift in the visibility of punishment, its public enactment upon the body of the condemned person, in favor of what Foucault will trace as technologies of disciplining, was motivated in the first place by a juridico-political move away from considering crime as an injury inflicted on the sovereign body itself. The spectacle of public torture and execution had provided ritual confirmation of the king’s invincibility in response to such an offense against his person:
The punishment is carried out in such as a way as to give a spectacle not of measure, but of imbalance and excess; in this liturgy of punishment, there must be an emphatic affirmation of power … of the physical strength of the sovereign beating down upon the body of his adversary and mastering it: by breaking the law, the offender has touched the very person of the prince; and it is the prince—or at least those to whom he has delegated his force—who seizes upon the body of the condemned man and displays it marked, beaten, broken. The ceremony of punishment, then, is an exercise of “terror.”27
The “technical mutation” that Foucault describes as a “transition from torture, with its spectacular rituals, its art mingled with the ceremony of pain, to the penalties of prisons,”28 thus signaled the disappearance of that form of sovereignty.
In the second place, though, as with every public ceremony, the ritual “liturgy” of capital punishment carried with it the possibility of excess on the side of the spectators themselves, such as we have just seen in the colonial American context. Executions risked becoming “momentary saturnalia,”29 including “a whole aspect of the carnival, in which rules were inverted, authority mocked and criminals transformed into heroes.”30 From that point of view the very sovereign power that was on display, reimposing its sheer physical strength by crushing the body of the condemned person, exposed itself at the same time to further injury in the manner of what Derrida might call a form of autoimmunity. As Foucault describes it:
The great spectacle of punishment ran the risk of being rejected by the very people to whom it was addressed. In fact, the terror of execution by torture created centres of illegality: on execution days, work stopped, the taverns were full, the authorities were abused, insults or stones were thrown at the executioner, the guards and the soldiers; attempts were made to seize the condemned man, either to save him or to kill him more surely; fights broke out, and there was no better prey for thieves than the curious throng around the scaffold.… But above all … the people never felt closer to those who paid the penalty than in those rituals intended to show the horror of the crime and the invincibility of power.31
In the European context, at least, the dissipation of moral and religious emphases by means of the festivities of execution day was therefore of less concern than the loosening of sovereign authority. And indeed, the period of transition from torture to imprisonment was also the period of the historical convulsion called the French Revolution. Foucault’s emphasis on the evolving “techno-politics of punishment”32 does not require him to dwell on it, but, as I shall now discuss, the French Revolution opens the door to a whole new era of capital punishment.
In terms of spectacle, the Revolution extends certain elements of the regime of visibility obtaining under the monarchy, even though it explicitly rejects torture. Its ultimate stage will be the guillotine platform that Louis XVI, reduced to the simple citizen Louis Capet, is forced to mount in January 1793, and its ritualistic orgy of bloodletting will build to the paroxysm of the Terror between then and the execution of Robespierre a year and a half later.33 Nevertheless, the Revolution also constitutes a significant displacement of the visual force of the death penalty, which takes place via the recalibration of the time of punishment, away from torture toward death as simple ablation of life. Under the old regime:
Torture is a technique; it is not an extreme expression of lawless rage.… Death is a torture in so far as it is not simply a withdrawal of the right to live, but is the occasion and the culmination [terme] of a calculated gradation of pain: from decapitation (which reduces all pain to a single gesture, performed in a single moment—the degree zero of torture), through hanging, the stake and the wheel (all of which prolong the agony), to quartering, which carries pain almost to infinity.34
The French Revolution will therefore find its own novel appropriation of the instant of the death penalty—a single gesture performed in a single moment—in the promotion and invention of the guillotine. That initiative begins with the Constituent Assembly’s proposal for a new penal code, advocated for by Dr. Joseph-Ignace Guillotin, in October and December 1789. Article 2 of that proposal read as follows: “In all cases where the law applies the death penalty against an accused person the punishment [supplice] will be the same, irrespective of the kind of crime of which that person has been found guilty; the criminal will be decapitated.”35 In January 1790, Guillotin again addresses the National Assembly and repeats that article, but adds this important precision: “That will be performed by means of a simple mechanism [par l’effet d’un simple mécanisme].”36 By the time the new code is adopted in September 1791, the terms of the 1789 proposal have been condensed into the following two articles (closer to Guillotin’s original, October 1789 proposition), without for all that losing the emphasis placed, precisely, on simplicity:
2. The death penalty will consist in [the condemned person’s] being simply deprived of life [la simple privation de la vie], without the possibility of any torture being performed on those condemned.
3. Every person condemned to death will be decapitated [tout condamné aura la tête tranchée].37
The machine that will come to bear the name of Guillotin has been waiting in the wings, in the broader scheme of things European, since the Italian mannaia, which was thought to have been used from the thirteenth to the eighteenth century, and the Scottish maiden that was in use at least between 1581 and 1685. Guillotin trained as a Jesuit priest but abandoned the Church in favor of medical school in Reims before moving to Paris where he taught anatomy, physiology and pathology at the Paris Faculty of Medicine. A Freemason, he participated in a Royal Commission on mesmerism, then embarked on a political career on the eve of the Revolution.
The transcription of Guillotin’s argument for what would become the guillotine, presented to the Constituent Assembly in late 1789, has been lost, but the various formulations to which he is supposed to have had recourse were reported in different publications at the time. “Gentlemen, with my machine I can have your heads off in the twinkling of an eye and you will not feel the slightest pain,” he maintained.38 If the condemned person does feel something, it will be “no more than a slight sensation of coolness at the back of the neck [sur le cou … une légère fraîcheur].”39 One can presume that his simple mechanical solution facilitated adoption of the 1791 penal code in October of that year, and within a period of six months the design of the guillotine will have been perfected, thanks principally to the efforts of another doctor, Antoine Louis. As if extending the humanitarian mission of the apparatus, it will be a piano and harpsichord maker, Tobias Schmidt, who earns the right to construct the first prototype, having undercut by some 500 percent the estimate tendered by the official state carpenter. “I profess the art of the mechanical construction of pianofortes,” Schmidt writes in a letter to the Convention following the Terror, “but I sometimes abandon that art to dedicate myself to mechanical discoveries useful to humanity,” going on to mention inventions such as a rudimentary submarine, an improved plow, and an extendable ladder, but neglecting to mention his guillotine.40 Though he cut some corners in constructing a prototype—wood rather than copper for the grooves in which the blade would slide, blade of inferior steel—he subsequently made the necessary improvements and the machine was ready for testing in April 1792.
At that point the medical community took over, with Antoine Louis writing to the chief surgeon of the Bicêtre Hospital, Michel Cullerier, asking for space and a series of cadavers to enable the momentous experiment. Cullerier was only too happy to oblige:
You’ll find at Bicêtre all the facilities that you desire to try out a machine that humanity cannot look at without quivering, but that justice and the social good have made necessary. I’ll hold on to the corpses of the unfortunates who perish between today and Monday. I’ll have the amphitheatre arranged in a suitable manner, or if, as I presume, the height of the ceiling doesn’t accommodate the machine, I can put at your disposal a small isolated courtyard situated next to the amphitheatre. The preference you have shown the Bicêtre Hospital is a very nice gift that you offer me, and it would be all the more so if you were to accept a simple and frugal dinner such as a young man can provide.… I await your favorable response, flattered in expectation [avec une flatteuse espérance].41
Among the dignitaries present at 10:00 a.m. on Tuesday, April 17, were the Drs. Guillotin and Louis, Schmidt the builder, and Sanson the state executioner; but also in attendance were the philosopher and physiologist Pierre-Jean-Georges Cabanis, who had been Mirabeau’s private physician, and Professor Philippe Pinel, founder of “moral therapy” for the mentally ill and renowned for his role in the unshackling of the insane. The corpses provided by Cullerier were those of two prisoners and a prostitute whose heads, according to Cabanis, were separated from the trunk with “the speed of a glance,” their “bones sliced through cleanly.”42 Events thereafter conspired to the point where the convicted mugger Nicolas Jacques Pelletier was ready to be introduced to the national razor for its inaugural drop on April 25, 1792.
As the new revolutionary law required, usage of the guillotine lay to rest the desire that punishment be cruel, or that confessions be obtained by forms of torture, practices that the government of Louis XVI had already begun progressively to call into question, especially in the years immediately preceding the Revolution. But, beyond that, the new machine democratized the death penalty by being used in all cases, and introduced “the simple deprivation of life” by means of a decapitation that leaves no margin—especially no temporal margin—for the possibility of torture to be entertained. Foucault quotes an account from 1825 that emphasizes the presumed correlation between a pure mechanicity and an almost imperceptible death, adding: “The guillotine takes life almost without touching the body, just as prison deprives of liberty or a fine reduces wealth.”43 In this way guillotining amounts to a mechanism of instantanization as anesthetization, a death so rapid that it cannot be felt, such as will have inspired and structured the operation of judicial executions in the West ever since.
However, even at the moment of the guillotine’s invention and implementation in the last decade of the eighteenth century, serious doubts were raised concerning its efficacy. Dr. Louis thought, based on his mechanist conception of “the human body as a system of interlocking parts,” that even the common fear of death could be assuaged once it was understood that that body would be rendered instantly inoperative by an even more trustworthy cutting mechanism, one with a guaranteed instantaneous effect. Arguing before the National Assembly in March 1792, for the advantage of a slanted convex blade, Louis declared that
considering the structure of the neck, with the spinal column as its centre composed of several bones whose connections overlap … one cannot be assured of a prompt and perfect separation by entrusting it to an agent whose accuracy might vary because of moral and physical reasons. It is necessary, if the procedure is to take place with certainty, to depend on invariable mechanical means.… It is easy to have such a machine constructed, whose effect is infallible.44
But that mechanist assurance came into conflict—once the guillotine began to be used regularly, and perhaps abetted by the very fact and spectacle of the Terror’s exponentially increased bloodletting—with new medical opinions regarding consciousness.
Without going back as far as Saint Denis’s legendary six-kilometer trek, in the third century, with his head in his hands, common mythology held that Mary Stuart’s severed head spoke in 1587; and similarly, that the cheeks of Jean-Paul Marat’s assassin, Charlotte Corday, blushed at the indignity of being slapped by the executioner who held up her severed head for the spectators. But the question was given more serious consideration by the German physician Samuel Thomas von Sömmerring, the journalist Konrad Engelbert Oelsner, and, among the French, the surgeon Jean-Joseph Sue and Cabanis. As Grégoire Chamayou makes clear in his comprehensive review of those opinions, and the ideas that supported them, the debate extended into broader questions of the irritability versus sensibility of what lives, and the concept, and localizability, of a (conscious) self as distinct (or not) from the Aristotelian notion of a living soul.45 In observing supposed signs of life in a severed head, science was first asking, “What survives in the head? Does only irritability survive or do sensibility and consciousness also survive?”46 But those questions, and by extension the question of how or where death occurs, could not be separated from research into whether life was located in a centralized brain (for example, Descartes’s pineal gland), or diffused throughout a more broadly animated body.47 In the case of the positions advanced by Sue on one side and Cabanis on the other, the differences were focused on Sue’s somewhat paradoxical assertion “that the persistence [in a severed head] of sensibility without perception was the same as the presence of an unconscious sensible life, entitled as such to respect and consideration, [whereas] Cabanis rephrases the question as: the only pertinent death here is that of the individual, the self or subject.”48
In a more specific sense, the debate over where person, soul, or life resides within a body necessarily raises the question of where to locate the legal subject whose life the death penalty is precisely entrusted with ending. Given the difficulty of “finding the legal subject in the flesh of the body with the aid of a scalpel,” Chamayou demonstrates that the debate initiated by Charlotte Corday’s red cheeks uncovers “a constitutive aporia of the modern anthropological knowledge that was being established at the end of the eighteenth century, in which Man was born discursively from this impossible ‘pinning down’ of the transcendental subject onto the somatic subject.”49
Clearly, then, the guillotine blade did not slice into a living body without also wading into a complex set of epistemological questions. If, as Arasse reports, death was considered, from the time of the Encyclopedia, to be double—both incomplete and absolute—the “plurality of deaths in death” to which debate concerning the guillotine gave rise led to a more difficult quandary.50 As Chamayou poses it:
There is a plurality of deaths in death just as there is a multiplicity of lives in life but these various deaths that are usually merged in the apparent unity of an event here became spectacularly desynchronized by this new execution technique. The guillotine produced a phenomenon of imperfect death, posing the question of which death is the death of the self, which biological death is the death of the person.51
The effect—and it cannot be circumscribed as a side-effect—of the guillotine was that it both called for and provided for research into that quandary by means of experimentation on the human body: “this new mechanism gave rise to new death-related phenomena linked to a new method of producing cadavers that could be used immediately in research in experimental medicine.”52 Not that medicine had not seized on the availability of cadavers for its research in the past, but the Terror provided an emerging science with samples on a grand scale, transforming its savants into veritable thanatopoliticians:
With Guillotin and Louis, doctors became technicians of death. The unprecedented and scandalous nature of this new positioning of medical knowledge has been emphasized. It was unprecedented because it broke with the traditional mission of medicine. Even in cases where a doctor supervised torture, he remained nonetheless in charge of making sure the patient did not die, whereas here it was no longer a question of avoiding death in order to make suffering endure but of giving absolute acceleration to death in order to avoid all suffering. And it was scandalous because this new role flouted the historical mission of medicine: to treat illness, to preserve health, and above all, according to the Hippocratic Oath, not to harm.… Not only did medicine attain a new position of expertise but also, and above all, in the late eighteenth century it entered into the service of what Foucault called thanatopolitics, the reverse side of biopolitics whose purpose is death.53
The other, perhaps converse way to interpret the guillotine as new death-dealing machine or automated execution mechanism, would be, consistent with my position throughout this book, that the invention and widespread implementation of this late eighteenth-century apparatus produced an innovative conception of the prosthesis that has always regulated relations between the human and the technological. The other side of the question about where life begins and ends, and in what part(s) of the body, is a similarly epistemological—as much as medical—question about how living flesh relates to the inanimate, how much interference by the inanimate within the living human is desirable or permissible, how much inanimate a body can assimilate. At what precise knife-edge point, or up to what precise instant can human life be said still to resist, or conversely to concede to its inanimate other? The blade of the guillotine was presumed to adjudicate those questions—which remain the subject of debate to the present day—as precisely the appeal for a decision, or the trenchancy of a necessary delineation, between life and death.
Consequently, though the precise terms of that interpretation of the guillotine’s effect may have escaped him, Cabanis’s reaction to the first testing of the apparatus effectively relies on it. Granted, on one level he seems simply to remain within the mechanist tradition of La Mettrie, or Descartes, presuming that the improvements to the mechanics of the guillotine decided upon by the surgeon Louis—giving the blade “an oblique shape [disposition], so that it cuts as it falls in the manner of a saw, which, as everyone knows, causes the severing to occur easily and more promptly”54—corresponded satisfactorily to the mechanics of an animal body. For Cabanis, such a body no longer has any sensation of what is going on once “one suspends the correspondence between a part and the whole.… A simple shock to the cerebellum or to the spinal cord, a violent blow to the occiput is enough to cause death.”55 He thus refutes the idea, represented by Sue, that “sensibility can exist in an organ, independently of any communication with the major nerve centers.”56 Yet, on another level, he is staking a claim concerning the prosthetization of the human. He is ceding to the inevitability of technological viability, and reliability—call it faith in the machine—that had essentially trumped any humanist qualms from the beginning. For, on the one hand, the human has always been negotiating with an inanimate, as it were inside and outside itself, an inanimate that it does not necessarily perceive as foreign; and, on the other hand, technology is by definition, from the moment of the most rudimentary tool, a means to assist the human, either to perform by more economic means what the human is nevertheless capable of, or precisely to outperform humans up to the point of superseding them. From that perspective the debate, and seeming impasse, concerning the desired level of prosthetic attachment or replacement, concerning the optimal human-machine interfaciality, a debate that resurfaces still over issues such as life support, euthanasia, or cloning, as much as over different methods of execution, will have in effect been resolved at the end of the eighteenth century by the mechanized death introduced by the guillotine. For not only did the guillotine introduce an unprecedented level of mechanically automated death but also, in a very novel way, it tethered the human to a machine on the extreme edge of its existence.
Cabanis was satisfied that “when a man is guillotined, it is all over in a minute. The head disappears, and the body is immediately put in a basket.”57 Out of sight, out of mind. Moreover, though the scientist and hospital administrator in him were content to observe the first dry run of the machine, he never witnessed the execution of Charlotte Corday or anyone else, being unable to “tolerate that spectacle.”58 After all, presuming that it can be separated from the preceding questions, the visuality of the guillotine remains complex. Arasse describes how an invisibility deriving from the speed of an execution motivated initial objections: either that very rapidity made it appalling by definition, or, conversely, “the very speed of the operation attenuated the exemplary value of capital punishment.”59 The impression such a machine gives of a justice that is swift and implacable does nothing to reduce the violence of the act of decapitation, and reinforces a finality of judgment and irrevocability of punishment that still recalls something of the absolute sovereignty of the monarch. Of course there is no justice that is not decisive, and no death penalty once administered that is not irrevocable, but the scene of guillotining in fact retains from earlier practices the spectacle of bloodshed, and perhaps even emphasizes it. Thus, in another formula attributed to Guillotin during his discourse before the Constituent Assembly the advantages of his machine were vaunted in a way that Cabanis’s mechanist faith would repeat following the end of the Terror. According to Guillotin in late 1789: “The mechanism falls like lightning, the head flies off, blood spurts out, the man is no more [La mécanique tombe comme la foudre, la tête vole, le sang jaillit, l’homme n’est plus].”60 Even as Guillotin promotes his machine from the point of view of its instantaneity, therefore, he allows for a spectacle that will endure throughout the instant of its operation, throughout the time it takes for however much blood will spurt out to spurt out until the man is no more. And that spectacle is necessarily visual. The image that Guillotin depicts so vividly by means of what Derrida will call “a four-stroke verbal machine” (DP I, 222) is the image of a graphic instant: a flash, a flight, a gush, a termination. Thanks to its light, its truncation, its profusion of color, and its limit, we might call it a photographic instant. It has three successive phases—the fall of the blade, the decapitation itself, and the bloody effusion—that amount to a single image of a man becoming no more. Each of those successive subdivisions of a single moment has its own visual force: the industrialized efficiency of the accelerating descent of knife-edged steel; the scientific precision of an ablation and automatic disposal of the human rational nucleus; and the reflex physiological reassertion of a gushing, wasted vitality. But it is the blood spurting out that fills the image with its vividness, as it were reaching out to be “in the face” of a viewer, as if the previous phases were preludes to the main visual act, adjusting the lighting and clicking the shutter to capture what really remains to be seen in all its unstoppable scarlet effusion. As historian of the guillotine Daniel Arasse avers, there was no avoiding the fact that however much the “inhuman spectacle of public execution” were reduced by the machine, it could not sublimate “the sudden spurt of blood [une brutale effusion de sang].”61
It is in that way that the guillotine becomes a photographic instant, the moment seized in the heat of its intensity, and in the intensity of its color. But it is not just the effusion of blood, the blood itself that produces a crisis of visibility—something intolerable to see yet fascinating in its intolerability—it is also the crisis of exposing to view the critical tipping point between life and death. Thus, for all that was presumed about the relation between the speed of the machine and invisibility, there came to be concentrated at its focal point—variously called the lunette or window—what Arasse calls “the blind spot around which there crystallizes a terrible visibility.”62 He continues: “It is not that there was nothing to see; but what was seen was something other than the operation of the guillotine.… Within the frame in which the blade falls, something does indeed happen, something intolerable.”63
It is perhaps then no surprise, for reasons as apt as they are macabre, that an executioner’s assistant in France came, as the technology of the image developed in the nineteenth century, to be called the “photographer.” The so-called photographer’s task was to position the condemned person’s body once it swung into place on the trestle, and, as the top half of the yoke was fixed in place, to pull the head firmly toward him, holding it by the hair or behind the ears. Thus, hoping neither to be bitten nor lose his own fingers or hands as the blade dropped, he was expected to offer a nicely exposed nape in marriage to the blade. Once the blade had fallen he would quickly remove the severed head, trying to avoid being showered with blood, and place it in the basket. It was clearly the analogous idea of a peephole into abjection that gave rise to photography as a figure for guillotining: the yoke or lunette as lens, the blade as shutter, the activator as photographer. As explained by Fernand Meyssonier, who claimed to have served in such a capacity, assisting his father in more than a hundred executions in Algeria between 1947 and 1961, first as voluntary then as official executioner:
One designates by the term “photographer” the member of the team (generally the first assistant) who stands on the “head” side of the guillotine. He receives the “client” by passing his arms between the two uprights of the machine, an operation that is famously dangerous.… From his position he sees the condemned person arrive through the “lens” constituted by the lunette, whence the denomination “photographer.”64
But the specific function “activated” by the photographer was the immobility of the instant—or at least an attempt at the same—an immobility that was as important for a successful decapitation as it was for the clarity of a photographic image (until progressive improvements in the operation of the lens and control of the aperture reduced the problem of blurring or overexposure). Thanks to the executioner’s assistant known as the photographer, the client subject remained still for a brief moment, as it were outside of time, a time during which there would be nothing moving except the blade, set falling by something like the click of a shutter. As it made contact with the neck the guillotine simultaneously severed the head and revealed the spectacle of blood flow. Picture-perfect; justice done.
In a discussion that details the extent to which the guillotine introduced a series of esthetic preferences in the first hundred years of its use, preferences that were reflected in “painting, the art of makeup, wax figures,” Patrick Wald Lasowski shows clearly how those literary and artistic fashions culminated in the esthetic revolution brought about by photography. The analogies between guillotining and photography abound: in the crowd’s scopophilic enchantment—“One can then imagine an instant of silence. The pose is struck. Release of the guillotine, and the head cut off”;65 in the fantasy of capturing that instant of decapitation on film; in the headrest that portrait photographers will adapt from the guillotine to insure the subject’s immobility:
It is in this sense that the 19th century brings about the encounter, the superposition, the filiation between the guillotine and photography.… In fact, the guillotine announces and brings about the entry of the 19th century into modern times.… [It] imposes mechanization, anonymity, and the effects of speed and instantaneity.66
In his analysis of the guillotine Arasse will add a further vector to this modernist intersection of instantaneous capital punishment and photography, namely the economics of industrialized automation: “The guillotine, that product of the Enlightenment, was also one of the first machines considered in economic terms, the cost-effectiveness of its output being evaluated according to the time taken.”67
Indeed, common to both Dr. Guillotin’s assurances to the Constituent Assembly regarding the efficacy of his machine—decapitation performed by a simple mechanism, your head off in the blink of an eye without your feeling a thing—and the promises of photographic reproducibility, is a constant insistence on the progress of mechanical automatization. No longer does the judicial system have to rely on the fallibility of the human. But, as we have seen, what is for Guillotin a humanitarian advance will later amount, for Blackmun, to an unacceptable level of dehumanization. Indeed, Blackmun’s suspicion of the impersonal machine some two centuries later finds an echo in the response to Guillotin’s proposals to the 1789 Assembly, which were greeted with derision precisely because his compatriots could not reconcile themselves to “the mechanical instantaneousness of death”68 that he vaunted. As Arasse explains, “the guillotine was perceived from the first as barbaric, for it brought together two virtually incompatible characteristics: a cold technical precision, and the savagery of physical mutilation.”69
It is also the case that, if we are to give credence to the accounts of Fernand Meyssonnier, the role of the “photographer” renders Guillotin’s promise of an automatic machine rather less assured. Meyssonnier describes a function that was crucial to the success of an execution, and ascribes rather to a human temporal economy the management of the “instant” of decapitation. For unless the photographer was able to ensure, by his own sheer strength, that the condemned person did not instinctively pull his head back toward the shoulders but instead exposed his neck, there was a risk that the blade would not cut cleanly, slicing through the cranium, or requiring the final decollation to be performed with a knife. And it was up to him to direct the proceedings once the head was engaged in the lunette, for the chief executioner, situated on the other side of the machine, could not see when to choose his moment to let the blade fall. Both the machine itself, and the machine of time, therefore, operated thanks to a mechanized or prosthetized human element, as can be understood from the account I quote here at length:
In an execution it is the role of the first assistant, called the “photographer,” that is the most skillful and dangerous. From a technical point of view the role of the “photographer” lasts less than five seconds.… If sometimes there are badly cut off heads, 95% of the time it is the fault of the “photographer”.… That is why one has to act fast, and be especially precise, and not panic or rush in such a moment. If I don’t pull the head quickly, the condemned person is likely to draw his head back into his shoulders.… [Depending on the diameter of the lunette] he might have his whole lower jaw inside the two halves of the lunette and there it’ll be botched. Half of the head is torn off and, one time out of four, there are still some muscles attaching the head.
The most dangerous part is just before the upper half of the lunette is secured. When the condemned person seesaws down, I’m there to help. I help the chief executor because the condemned person might turn his head to the side, or pull his head back toward his shoulders. I help so that he doesn’t grab on to the half-lunette. If I let him he might bite the half-lunette. And then it’s like a vice. He won’t let go. A human being knowing he is going to die has terrible strength, he no longer feels pain. So when the condemned person swings down I put my two arms through the uprights.
Yes, my two arms are between the uprights, in the middle of the guillotine. I even practically put my head between the uprights. At that point, watch out! If the chief executioner starts the blade falling … I lose my two arms.… Yes it’s dangerous and risky being a “photographer.” Watch out! One has to have confidence in the executioner. He mustn’t let go too quickly, otherwise there’s an accident, hands cut off. That’s why it was me who would say to my father (the chief executioner): “OK, go!” Because the chief executioner, when he drops the upper half-lunette into place, can no longer see. He is on the body side. He can’t see what is happening on the other side. He can’t see whether I am holding the head steadily, whether the condemned person is in a good position. But I am on the other side. He can’t see. And when I say to him “OK, go!,” boom, he lets it go [il déclenche, also “presses the shutter”]. It is fast, it’s really fast. Swinging down, getting things in place, that lasts two, three seconds.… So one has to work as quickly as possible.… So I hold the condemned person by pulling him, my hands like hooks behind the ears.… If I came across a guy with a good head of hair, I held him by the hair. It would make a good fistful. But three-quarters of the time their heads were shaved. So I took the head from behind the ears, my forefingers well extended under the ears.70
Meyssonnier’s relativization of the mechanical infallibility of the guillotine, and the history of botched executions in the United States such as has been detailed by Austin Sarat and colleagues, function in stark contrast to the presumptions made by bodies politic and judicial concerning the advance toward machinic perfection of successive innovations in putting to death.71 Similarly, on the other side of the comparison I am drawing here, we can now see how technological optimism overcame all resistance to become the hallmark of photographic modernity from the era of its invention to the realist faith of the post–World War II cinematic age. And in retrospect we can understand the attraction of a conceptual continuity between the simple mechanism of the guillotine and that of the camera. A “simple mechanism” that brought about the “simple deprivation” of life produced the ineluctable reality of an efficiently modern death penalty in an analogous way to how, in the words of realism’s most celebrated theorist, the camera allowed for the simple photographic reproduction of reality.
In his 1945 essay “Ontology of the Photographic Image,” André Bazin writes of the “production by automatic means”72 that produces the photograph, thanks to the automatized labor of the camera’s “impassive lens.”73 As a result, “for the first time, between the originating object and its reproduction there intervenes only the instrumentality of a nonliving agent. For the first time an image of the world is formed automatically, without the creative intervention of man.… All the arts are based on the presence of man, only photography derives an advantage from his absence.” But it is not just faith in the machine—elimination of human manipulation and error, simple mechanical automatism—that encourages comparison between the guillotine and the camera; it is also a realist faith. There is neither margin of error nor sleight of hand at work here; nor is there any need for a complex discursive apparatus, or allegorical illustration. The guillotine inaugurates the instant of a justice presented as something that simply is, and of a punishment that, however extreme it be, even “capital,” has nothing excessive about it. This death penalty would be no more nor less than it appears to be, in an analogous way to how photographic reproduction manages, in Bazin’s extreme terms, to be the object itself, presented “in all its virginal purity.”74
To recap, therefore, what I am arguing here: concomitant with the change in regimes of visibility that accompanies the regulation of punishment by means of the prison—following Foucault’s thesis—there develops a new conception of the instant that is articulated through the spectacle of the death penalty. The first moment, or a first moment of that new instant is represented by the trap door gallows, but that innovation is anchored at first in a broad discursive network within which the scene of execution functions as instructive and illustrative instance, but does not reduce to the visually focused event that it will later become. Paradoxically, though the hanging-day spectacle cannot function without at least the expectation of an execution, the execution itself is not necessarily front and center of the exhortation and celebration that is being staged. Indeed, the inessentiality of the moment of execution is reinforced by the fact that in some cases during colonial times, as Banner reports, the ritual was limited to a symbolic or mock execution.75
The moment of execution becomes a genuine visual instant from the time of the introduction of the guillotine late in the eighteenth century, and it achieves what we might call its ideological institutionalization once photography becomes a fact of cultural life starting in the early to mid-nineteenth century. From then on the execution comes to be focused on the instant that the guillotine will have instituted, on the dramatic or theatrical realism of that instant with its spectacularly technologized speed and bloody histrionics, and a certain irrefutability of its efficacy. That derives less from the proximity of eyewitnesses to the scene, or from forms of allegorical and discursive relay that allow what has been seen by some to be understood by all. Instead, the truth of the guillotine—and of every subsequent form of execution that similarly trades on the instant—derives from its being a machine, an automatized apparatus whose only laws are supposedly those of physics.76 We do not need to see the blade drop to know that the criminal has been decapitated, because we trust the machine to work in the way it has been designed to work. It is the truth of the machine that now gets relayed, reproduced even, throughout the scopic field, and indeed into the culture in general, which is irremediably a culture of scopic technology. But more accurately, what gets transmitted as a cultural fact is less the simple truth of the machine than an image of the truth of the machine, or the truth of an image of what the machine has produced. That truth—or reality if one prefers—is a blood-soaked image that is the “photograph,” condensed into the single frame of the lens or “lunette” of the guillotine, at the same time revealing the triumph of technology over the frailty of the human (the blade falling like lightning, a head flying off), and reasserting a naked human animality (blood spurting forth). Though late twentieth-century refinements of such an instant, for example lethal injection, no longer have as point of reference the graphic effusion of blood—except where it finds its equivalent in the sordid botchings that we continue to witness—I would argue that the same realist visual regime obtains.
Clarence Thomas’s descriptions of the awful circumstances of the crimes perpetrated by criminals condemned to death, and who, in his view, plainly merit the kinder, gentler execution that we now accord them, bring us full circle from the hanging day scenes and sermons of the age of the trap door to a certain retentionist logic developed in the context of Supreme Court Eighth Amendment debates. Cotton Mather’s ministrations, or those of others, were a descriptive prelude to—and often a prelusive description of—what a certain percentage of the crowd would see once the trap door was activated and the condemned one dropped out of sight, launched into eternity. But the whole community of those present would understand the gravity of the occasion and their role in the spectacle. By the time the guillotine came into use, the spectatorial community had lost much of its cohesion; however, the instant inherited from the trap door would then come to be refocused in a new form of graphic visuality reinforced by a new technological form of certainty. Now, with executions having receded into a form of clinical darkroom, Thomas’s descriptions bring back to light the self-evidence of a depravity about which the electronic darkness or silence of current lethal injections should not allow us to split hairs: if I can just tell you or show you who these criminals are and what they did, he implies, any objections will be understood as totally obscurantist, and certainly null and void in the face of the Constitution.
Hence, it is no longer a matter of arguing that, should we for a moment let our Puritan guard down and open the door to impure thoughts, we will find ourselves on the road to perdition, in effect mounting the steps of the scaffold. That is not the allegorical or moral truth that is being propounded; rather, what is being communicated is an automatic, realist truth. That truth presumes the possibility of an incontrovertible, as it were photographic demonstration—whence the description of the crime that Thomas gives us—that the only people who suffer the death penalty in our day in the United States are the worst of the worst (“in my decades on the Court, I have not seen a capital crime that could not be considered sufficiently ‘blameworthy’ to merit a death sentence”). We are supposed to see for ourselves in the horrors he depicts that it is only the most egregious criminal acts that lead to a sentence of death, just as we are supposed, by means of arguments he advances in the same context, to see or imagine in the clean clinical execution chambers of various state institutions the extents to which we go to insure that those worst of the worst die the least painful of deaths. It is less a moral contrast that he establishes between crime and punishment—although it can easily be exploited in that way—than a photographic convergence, such that two moments continue to be seen, as if superposed in the same graphic space, as was the case with the guillotine: in the latter case, incontrovertible death-dealing and bloodletting (at the scene of execution) superimposed over implacable mechanical automaticity and technological certainty; in contemporary times, intolerable cruelty (at the scene of the crime) superimposed over the same implacable mechanical automaticity of the lethal injection apparatus.
Of course, my reconstitution of that logic appears to involve a flaw: The realist image cannot in fact be a superposition of two images, for that would detract from its clarity. But we can understand such a flaw to exist in any realist ideology that presumes to function on the basis of an unmediated technological automatism such as the operation of a camera. The image cannot in fact appear in all its clarity unless it is “accompanied,” however implicitly, by the extensive support system that produces it: the supposed automatically produced photograph in fact relies on an inversion of the real in a dark room, the same dark room (camera obscura) that names the apparatus, just as it relies on a chemistry of development and reproduction, not to mention its reception within a specific cultural and ideological field. We would have to understand all those mediations as subsuming the simple reproduction of the real that a Bazin supposes.
Or else, to interpret the superposition of two images in terms that are more specific to our interest here: the existence within the same visual space and temporal instant—that of realist revelation—of an egalitarian, even humanitarian, and technologically refined execution apparatus on the one hand, and, on the other, a well framed and focused photograph, suggests that the instant is not single and indivisible, that it is a constructed rather than an automatic and naturally occurring instant, that it has no absolute status, and of course no absolutely irreducible duration: no pure instancy. Against the evolution from Niépce’s eight-hour exposure, through Daguerre’s fifteen minutes, to the Kodak Brownie’s 1/50th second at the dawn of the twentieth century one could no doubt match the instantanizations of various methods of execution from guillotine to lethal injection, without for all that arriving at anything other than an idealized conception of a still divisible instant.
There is no degree zero instant. An innovation such as the guillotine, supposedly invisible by virtue of its lightning speed, stages the very paradox of the instant. Citing a commentary on the guillotine that dates from the Terror, according to which “from the first point of contact to the last there is no distance; there is only an indivisible point: the axe falls and the victim has died,” Arasse draws this conclusion: “there lies the frightening paradox of the guillotine; this ‘zero distance’ defining an indivisible point in time is, in spatial terms, a height of fourteen feet. Raised to the top of the uprights, the blade defines a space which provides a figure for the instant, which is a spatial figure of the instant.”77 The guillotine gives an instant that measures fourteen feet: fourteen times one foot, seven times two feet, and so on, an obviously divisible instant; merely a figure of or for the instant. Similarly, lethal injection, in its three-drug protocol form, has nothing purely instantaneous about it; it is an instant divided into the moment of sodium thiopental or midazolam, the moment of pancuronium bromide, and the moment of potassium chloride. Like Guillotin’s falling blade, projected head, and spurting blood, it represents the divided time of successive instants. For that reason, beginning with the trap door gallows and all the way to lethal injection, what we call the instant of execution, what we call upon to function as an instant, will never be anything other than the definition and management of a noninstantaneous instant.
Photography will have taught us, contra Bazin, that the management of the instant is also the structure of control or manipulation of the instant. He was ready to concede that “the personality of the photographer enters into the proceedings … in his selection of the object to be photographed and by way of the purpose he has in mind,” but presumed that to be a benign and limited intervention (it is the single word “only” that my ellipsis drops out of the quotation).78 Bazin omits to say here, for example, that the photographer must also regulate the amount of light that will enter the camera by adjusting speed and aperture settings, on the basis of which the depth of field—the extent to which foreground, center and background will all be in focus—will be determined. Indeed, given his extensive promotion, in other writings, of a style of filmmaking that prefers deep focus and long takes, and often highly choreographed movement by the actors, over multiple shots that must then be subjected to a more complex editing process, those technical choices are very important and the production of the photographic image immediately becomes less “automatic” than he imagines. There is no degree zero of intervention when it comes to photography, but rather a set of possible interventions that go from pointing the apparatus all the way to highly codified aesthetic choices, and including everything in between (field of vision, angle, lighting, focus, type of camera, type of film, developing and printing processes; and in the case of moving pictures, what we call editing or montage).
I would argue that the analogy I have been developing between the instant of the image and the instant of an execution carries over into a comparable set of choices. One can argue that current methods of execution in the United States manage the instant in a nonmanipulative, benign, even progressive manner, and do so within a regime of visibility that excludes, as much as possible, any effects of spectacle. In contrast to international practices among nation states—hanging in India and Japan, firing squad in Taiwan and Indonesia, and beheading in Saudi Arabia79—that argument would appear to have weight. And indeed, beyond those examples, another contrast warrants being drawn. In the period during which I wrote this book, everyone, from a Cotton Mather to a Clarence Thomas and well beyond, had been outranked, in all respects, by the entity that calls itself the Islamic State: outranked in terms of the graphic spectacle of an execution, from burning to drowning to beheading or worse,80 outranked in terms of the cautionary discourse, spoken or written, that accompanies it, and outranked in terms of the visual surplus value of mediatic dissemination, of the publicity and telephenomenality of the event. We would seem to have been reduced to rank amateurs, bashful virgins, prurient titillaters in the domain of the image, in the purveyance of moral education, and in the management of the instant of an execution.
Islamic State’s cruel and morbid exploitation of a crude machinery of death, whether it be the sword, the drowning cage, or the firebombed cell, is a calculated manipulation of the machinery of the instant of death designed for maximum spectacular effect. It aspires to universal exposure by means of the Internet. It defies every measure of judicial conventionality, and in a sense one should not dignify it with inclusion in discussion of the death penalty, consigning it instead to the category of murder. Unfortunately, however, the executions perpetrated by the Islamic State mime and mock in every way the possibilities that are created by the most judicial of death penalties. By opening a space that it must then try to control by recourse to criteria having no relation to the automatism that defines it, the most faithful reproduction of the real allows for every faithless distortion of the real; so the congruence Clarence Thomas wants to establish between a heinous crime and an impassive judicial death penalty allows for a heinously murderous or criminal death penalty.
It is, after all, difficult to read Thomas’s presentation of his argument in Glossip without interpreting in it some sort of advocacy for a vengeful retributive justice, the same vengeful retributive justice that the Islamic State exploits to the hilt. By means of his shock image reality check he implies, at least, that the worst criminals deserve worse than their punishment, that the retribution the contemporary state visits upon them is unjust retribution given the egregiousness of their crimes. Once one accepts the retributive permissibility of the death penalty, one risks going down the slope of arguing for more and more punitive pain: “each of these crimes,” Thomas insists, “was egregious enough to merit the severest condemnation that society has to offer.” That would be the same argument and same logic that was advanced by our Puritan forebears, by the eighteenth-century French monarchy, and by Islamic State, however much those different judicial systems would disagree over the elements within that logic: “crime,” “egregious,” and “severest.”
It is also difficult to read Thomas’s vivid descriptions without suspecting that they contain an iota of scopophilia, even prurience; not that he takes pleasure in what he describes, but that he takes a certain pleasure in the very describing, in offering such a graphic visuality. Yet even if one rejects my suspicions, or uncharitable ascriptions of impure motive, it remains that his argument obeys a rhetorical logic that by definition cannot be neutral. Once again, it is a rhetorical logic that is structurally no different from the awful spectacular excesses of the images provided by the Islamic State. In each case, there is an appropriation of the instant for rhetorical purposes, even if on one side the case is being made that we are as just as one can ever be, whereas on the other side it is first a matter of celebrating cruelty in the act itself, and second in compounding that cruelty by means of the technological reproducibility of the Internet image, by effectively forcing us to watch.
Every capital punishment henceforth turns around the appropriation of the instant. That is so in the most straightforward sense because the rejection by the West in the seventeenth and eighteenth centuries of putting to death by means of judicial and judicious torture means that the death penalty is now defined as something other than that torment, as some form of, or attempt at reducing the punishment—to return to the terms of the four dissenting justices in Resweber—“as nearly as possible to no more than that of death itself” (Resweber, 474). Torture as more or less prolonged physical punishment has become, from that point on, a separate category from a death penalty understood as more or less instantaneous punishment. Thus, although both death by torture or torment such as Damiens suffered in 1757, and the modern death penalty involve managing the time of putting to death, only the second manages that time by means of a presumed instantaneity. Furthermore, despite the fact that execution practices around the world vary considerably, and in some cases, it might be argued, regress back across the line into torture, the adoption by successive international treaties gives to the eighteenth-century human rights rejection of torture universal recognition. And, as I have just contended, even the executions practiced by an Islamic State that explicitly rejects those very human rights values in favor of a premodern judicial apparatus, and that promotes precisely its outlaw status, cannot avoid addressing and thereby acknowledging the fact of the instant. At least when it comes to the executions—whether drowning, firebombing or beheading—that it wants the rest of the world to see, there is a sadistic exploitation not of forms of torture but of forms of more or less instantaneous execution.
As long as one is in the logic of the death penalty, one is necessarily in the business of the technological management of the instant, and faced with the impossibility of any absolute circumscription of that instant. An execution henceforth can be only relatively slow and painful—or, conversely, relatively fast and painless—but beyond a certain point of slowness, however difficult it be to determine that point, we are no longer talking about the death penalty. Supposedly, for Thomas, the American death penalty has now managed to reduce the pain of punishment to an unassailably acceptable extent, in spite of the fact that some executions in the United States continue to paint a much less pretty picture than others, and most would accept that the forty-odd minutes Clayton Lockett spent writhing and gasping for breath in April 2014, which set in motion revisions of the fatal cocktail in Oklahoma, was far from pretty, unacceptably so. But the only way to avoid—absolutely—both the intractable Eighth Amendment debates such as dominate Glossip and previous cases, as well as invidious comparisons that go all the way to the bloody excesses of the Islamic State, is not to perform capital punishment. Whatever physiological and psychological, juridical and political, ethical and moral distinctions can be made, and however stark those distinctions be, between an execution undertaken by the U.S. system of justice and the Islamic State system of justice, both share the structural space of capital punishment and negotiate or appropriate its instant. Any structural distinction drawn by the death penalty operates not between one form of it and another, but between retentionist states or entities such as those just mentioned, and abolitionist states.
As long as one is in the death penalty, therefore, inhabiting a position that accepts it as a (e.g., constitutional) practice, one is automatically in the business of arguing the merits of this or that form or speed or efficacy of an execution. Some are preferable to others. Perhaps sodium thiopental plus pancuronium bromide plus potassium chloride is preferable to pentobarbital plus pancuronium bromide plus potassium chloride, or midazolam plus hydromorphone. As I read it, it is frustration with having to decide within those parameters that leads Breyer in Glossip, after twenty years or so of presuming the death penalty to be constitutional, to argue, finally, that it isn’t working, and therefore to challenge its legality. It may well be a similar frustration that leads Thomas to plead for giving up on the hairsplitting; to suggest that we are talking after all about more or less painless forms of death for the worst of the worst, who inflicted painful or torturous death on their victims.
If, conversely, one is outside the death penalty, in the sense of refusing its permissibility, understanding it to be inhumane as a matter of principle, in all instances, then there can be no comparing sodium thiopental plus pancuronium bromide plus potassium chloride to pentobarbital plus pancuronium bromide plus potassium chloride, or midazolam plus hydromorphone, just as there can be no comparing beheading to burning to drowning; one form of execution is as unacceptable as another. From that place beyond the death penalty, the door to it off its hinges, the scaffold, guillotine and gurney dismantled, from that point on, though it by no means signify the end or bottom of the abyss of the spectacle of terror, torture, suffering—that of humans to begin with, but not necessarily to end with—something in the instant will have been transformed. From that point on the instant we call snuffing, the extinguishing of the candle of life, will have lost something of its imagistic force and violence. Something will have changed in the concept of the instant of death, and hence in the concept of human time, or at least human judicial time.