According to the logic of Eighth Amendment interpretations made by Clarence Thomas, the egregious violence or cruelty of the crimes of the worst of the worst is contrasted with the next-to-no-pain instant of execution by lethal injection. In the Western, post-Enlightenment era of capital punishment, of course, there is no converse or corollary to that, no prolonged torturous punishment to match an exalted crime of lèse-majesté such as was meted out to Robert-François Damiens in 1757. When it comes to the death penalty, there is no corollary for the shorter or longer prison terms that match other crimes. Instead, time obeys its own peculiar logic, or series of logics, all of which turn around the instant: It can be divided and its duration called into question; it is as much a machine that gives life its rhythm as it is a moment that the machinery of death attempts to capture; it disappears as readily into the ether of its absolutization as into the atemporality of secrecy.
In this final chapter, I will attempt to put the problematic instant of the moment of execution, and the various attempts to appropriate that instant that we have seen, into relation with the time of the act or crime that gives rise to it. That will be to pose—counter to Thomas’s matching of punishment to crime—the question of a type of reverse chronology, or chrono-alogicality whereby the effect (death penalty) reaches back to problematize the cause (crime). An understanding of what that might mean will involve, in the first place, examining the time of an act, especially as it comes to be complicated, if not by a psychoanalytic unconscious, then by the effect of irrationality upon criminal responsibility;1 and in the second place, accounting for the ways in which the judicial process of deliberation and decision comes to be complicated by what I will call narrative time. My privileged example for this analysis will be the strange case of a multiple homicide that occurred at a key moment in the history of the death penalty in France, an archive that was unearthed by a team of researchers led by Michel Foucault and first published in 1973.2 That story of Pierre Rivière is an exceptional one (but isn’t every crime?), and it brings into extraordinary focus the questions I wish to raise. It does so, especially, by means of Rivière’s memoir, which was conceived before but written following his commission of the crime. That narrative account is drawn into the means by which Rivière himself, and also the prosecution and defense, attempt to explain his motive. But in a more troubling sense, it opens up the temporal space between conception and act in a way that problematizes the very time of the criminal act: first, with respect to the juridical sense of intent or premeditation; second, by inserting within that space the narrative time of fiction in general, linking the killing time of a murderous act to certain functions of the literary machine.
In Chapter 2 the horrific accounts of crimes, exploited by Justices Scalia and Thomas in rebutting the compunctions of their colleagues concerning the potential pain of certain executions, were interpreted as obeying a type of photographic logic of truth: Look at this and see it for the horror that it is, and see that it merits the ultimate penalty. But as I noted then, the plain-as-day evidence that Thomas offers is verbal, and it is verbal discourse that dominates judicial proceedings in general. By way of comparison, I offered the example of the hanging sermon, where the event of the execution itself receives an extensive discursive and illustrative overlay; and, at the other end of the historical scale, the mediatic manipulations of gruesome executions performed by the Islamic State. The case of Pierre Rivière provides another peculiar discourse in the form of the criminal’s memoir. Yet, unusual as it is, even unique, Rivière’s narrative has as its general institutional structure the confession, which, in a strangely analogous way to how the suicide bomber’s autoexecution preempts the judicial process, functions in a relation of tension with the requirement of evidence and proof. Trial by ordeal, in medieval times, sought to extract the very confession that substituted for the trial, and confession remains the goal of every prosecutorial venture (to the extent of permitting all the abuses one can imagine).3 That is because it offers the most self-evident proof.
At 1:00 P.M. on June 3, 1835, authorities were called to a rural village house in Normandy following reports of a grisly murder. There they found three corpses: a woman of about forty years killed while preparing the family gruel, her neck and the back of her skull slashed; a seven- or eight-year-old boy with his head split open in the back; and an adolescent girl lying on her back with her feet out the door, her lacework on her chest, a large clump of hair clenched in her fist, the right side of her face and her neck “cutlassed to a very great depth” (PR, 4). Seventy-four-year-old Marie Rivière, the children’s grandmother, testified to having attempted to prevent the murder of her granddaughter, and to being the first to find the other bodies. Two other witnesses allegedly encountered twenty-year-old Pierre Rivière leaving the scene with a bloody pruning bill (7–8). According to one of them the murderer said that he had just delivered his father from all his woes: “I know that they will put me to death, but no matter” (8). It was almost a month later, on July 2, 1835, that Pierre Rivière was arrested, having wandered on foot throughout the region in the interval, remaining more or less, but not entirely out of sight. Four different trajectories each lasting about a week had taken him as far as the Channel coast, and amounted to a total distance covered of about 310 miles.4 Rivière’s trial took place in the middle of November 1835, and he was found guilty and condemned to death. His appeal was heard and rejected in January 1836, but on February 10 King Louis-Philippe commuted his sentence to life imprisonment. Rivière hanged himself in his cell on October 20, 1840.
That linear chronology of Rivière’s crime and punishment, his life and death, could be further filled in by facts concerning his preparations for, and premeditations concerning the crime, mostly by his own account: he has his pruning bill sharpened on May 24; dresses in his Sunday best on Saturday, May 30; plans, then defers the act twice on May 31; then again while plowing on June 2; and finally commits the murders at about noon on June 3. And, perhaps, more significantly, his crime is inscribed within the longer time frame of ten years of humiliations and financial hardships that he believes his mother inflicted on his father, and which constitute the motive for the murders. He kills his mother because she is the direct cause of his father’s misfortunes, and his sister because she is in league with her mother. When it came to the young brother, things were more complicated: of course, the little boy loved his mother and sister (24), which was perhaps cause enough, but, given the fact that both Pierre and his father also loved the boy dearly, the murderer reasoned that he could secure his father’s happiness only by making himself utterly abject in his father’s eyes. If he were to kill the innocent boy, “my father w[ould] conceive such an abhorrence of it that he will no longer regret me and will even wish for my death” (130).
As I mentioned earlier, however, two other factors disturb that chronology. The first appears with hindsight to be a purely juridical issue, but whose status was much less clear in the first half of the nineteenth century, namely the introduction of medical testimony inflected by the emerging psychological sciences of human behavior.5 If I say the issue appears now to be a juridical one it is because such testimonies were in turn a function of the application of extenuating circumstances, which, in spite of strong opposition, became an accepted element of French law beginning in 1811. Its applicability was extended to cover all crimes only three years before the Pierre Rivière case. As Patricia Moulin clarifies in one of the commentaries (which their authors call “Notes”) accompanying the archival dossier in the volume I, Pierre Rivière, two possibilities existed by 1835 for reducing penalties: an appeal to the King, or a plea of extenuating circumstances that limited culpability and allowed a lesser punishment (PR, 212). As we have learned, the French penal code was overhauled in 1791, following the Revolution; a further reform in 1811 instituted minimum and maximum punishments and introduced the term circonstances atténuantes, limiting that plea to certain crimes. The number of relevant crimes increased in 1824, but as of 1832 the doctrine of extenuating circumstances was applied generally, and it was left to the discretion of the jury whether to accept or reject such a plea (213).
The period of Rivière’s crime is also important in the more general history of the post-Enlightenment death penalty in France, and beyond. Most proximately, less than two months after his crime an infamous attempt was made on the life of King Louis-Philippe, an attempt that no doubt revived memories of the crimes and punishments of Damiens in 1757 and Ravaillac in 1610. But the assassination attempt is also notable for ushering in new, automatized, and remote-controlled forms of assassination, and it is pointedly contemporaneous with the development of photography. The 1835 plot—one of a series of attempts against Louis-Philippe, whose constitutional monarchy was a considerable improvement over the previous regime of Charles X, but who never enjoyed widespread popularity—put serious pressure on penal reform, and led to severe restrictions on the freedom of the press as part of a progressive clampdown against the opposition that would ultimately lead to the uprisings of 1848.6
Giuseppe Marco Fieschi, of Corsican origin, developed his assassination plan with a fellow conspirator and the assistance of a section of the Society for the Rights of Man, a widespread grouping of Jacobin-style republicans that developed out of the 1830 July Revolution. Fieschi’s plan involved an “infernal machine,” a primitive volley gun whose twenty-five barrels, each containing bullets as well as buckshot, were to be fired simultaneously from an apartment window overlooking the king’s parade route for the commemoration of the Revolution. Four of the barrels failed to fire, and another four exploded, seriously wounding Fieschi, but eighteen military personnel and others were killed, and many more were injured by the approximately four hundred projectiles. The king received a graze to the forehead but barely flinched, seeing the ceremony to its conclusion.
Between the murders committed by Rivière and Fieschi there is a world of difference: a provincial family feud culminating in a bloody artisanal slaughter by pruning bill, and a highly technologized and high-stakes political massacre. Those differences are also temporal, differences in the time or temporality of the crime. In the first case, Rivière chooses his moment as a function of the rhythms of rural life and labor; in the second case, Fieschi requires the precision of the moment when the king is within range, and develops a technology of momentous overkill, either to insure the success of his regicide, or to produce mass casualties. For those times of crime also correlate with different mediatic temporalities, hence my reprise of the role of photography: Rivière’s memoir will show him to have a somewhat megalomaniacal relation to his historical position that remains essentially mythological, drawing on Napoleon as well as figures from Roman and Maccabean history and the Vendée counterrevolution; Fieschi, on the other hand, produces an event in and of the present, a sudden flash of glory and gore—an absolutization, if not of the instant, then of the mediatic moment—inaugurating what would eventually become a format that has lasted all the way to Stephen Paddock’s October 2017 Las Vegas massacre.
In spite of those contrasts, one can point to significant resonances between the cases of Rivière and Fieschi, especially once they come to trial. The Court of Cassation rejected Rivière’s appeal “at the very moment when the complicated examination was being conducted at the Fieschi trial” (PR, 220), and the commutation of Rivière’s sentence by the king took place one day after Fieschi’s conviction and one day before the latter’s execution. But where the crimes of Rivière and Fieschi have their most significant convergence is in the age-old juridical analogy between patricide (here, matricide) and regicide. We remember from Chapter 2 that it was a simple citizen, not a king—referred to familiarly by Robespierre as “Louis”—who was guillotined in 1793. Indeed, the crime of regicide had disappeared from the penal code by then, associated as it was with the torturous excesses of the old regime. As Barret-Kriegel points out, regicide was still absent in name in 1832, and subsumed instead under the term “parricide”: “The penalty for a criminal attempt against the life or person of the sovereign is the punishment for parricide” (cf. 220). Resistance against allowing extenuating circumstances to be considered in cases of parricide remained strident throughout the 1830s (223–24). In addition, it was only three years prior to Rivière’s crime, in 1832, that the requirement that a parricide be mutilated before being executed—“the sheriff reads the writ of sentence aloud to the people. He [the parricide] shall then have his hand struck off and shall immediately be executed”—was abolished (cf. 221).7 One can therefore see how the wheels of jurisprudence had come full circle, from the Revolution’s first rejection of mutilation in relation to capital punishment to this second rejection forty years later.
Another wheel was turning during the same period. In 1829 an anonymous author published a novel entitled The Last Day of a Condemned Man. It was republished in 1832, signed by Victor Hugo, and accompanied by a long preface in which Hugo made an impassioned plea for the abolition of the death penalty, a cause that the thirty-year-old had already been supporting for nearly ten years. Indeed, from the time that an abolitionist bill was rejected in the wake of the July Revolution (1830), until, as a representative of the Constituent Assembly, Hugo himself militated forcefully but unsuccessfully to have capital punishment abolished by the Constitution of the Second Republic (1848), and essentially for the rest of his days, he was a tireless advocate for abolition. In that, he was part of a European, and also North American abolitionist trend that saw Michigan lead the way in 1846, followed by Rhode Island in 1852 (later reinstated, but no executions took place after 1845), Wisconsin in 1853, and Maine in 1887.8
As Hugo states, his novel was “nothing more than a plea, direct or indirect … for the abolishment of capital punishment,” a cause that represents the “great right of humanity urged and pleaded by every voice before mankind, which is the highest court of appeals; it was the ultimate principle [cette suprême fin de non-recevoir], abhorrescere a sanguine, established before the existence of the criminal courts themselves.”9 In his eyes, and as the conceit of his novel demonstrates, the supposed rejection, by the revolutionary penal code, of a torture that endures in favor of an instantaneous decapitation, is belied by the “torture” represented in the ritual of anticipation of, and preparation for each execution. Particularly disappointed by the French failure to abolish the death penalty after 1789, a disappointment that Hugo felt even more keenly when the winds of liberty seemed again to blow with the July Revolution of 1830—not to mention what he would have to relive in much more personal terms in 1848—he concludes that “the scaffold is the only thing which Revolutionaries do not demolish. It is seldom indeed that a revolution spares human life; and coming, as it does, to prune, cut, hack, and behead society, capital punishment is one of the instruments [une des serpes] which it is most loath to give up.”10
Hugo’s novel represents an abolitionist literature whose argument, however laudable, remains parallel to the illustrative intentions of the execution sermon or the photographic shock tactics of Thomas and Scalia. It falls clearly within the tradition of realism, in all its forms, that dominated the literature of the nineteenth century. Nevertheless, reaction to it, both positive and negative, indicates the extent to which France in the first half of the nineteenth century continued to struggle with the legacy of the monarchy—restored, of course, for much of that half-century—and the association of the monarchy with punitive excess.
Echoes of the abolitionist sentiment incarnated by Hugo, and continuing debate over extenuating circumstances, can be heard among reactions to the condemnation of Pierre Rivière published in press accounts of the time.11 On one side, newspapers such as the Journal de Rouen et du Département de la Seine-Inférieure editorialized that Rivière was a paradigm of corruption whose naïve judges indulged his crooked ways like a doctor who troubles himself with “eradicating the corns from the foot of a gangrenous leg already ripe for amputation” (PR, 148). That metaphor of disease is extended to cover the moral condition of “a society given over to every sort of unbridled material appetite” (150). On the other side, the Gazette des Tribunaux gives voice to an anonymous subscriber of “personal standing” (157) who believes Rivière should have benefitted from extenuating circumstances or be accorded royal clemency so that “corrected by good education [he may] some day repay the preservation of his life by some great service to mankind” (159). More pertinently, the Pilote du Calvados sees fit, in spite of its editors’ personal opinions on the topic, to publish a letter entitled “Yet another capital sentence,” lending “the hospitality of our columns to these remarks as at least one of the elements in the solution to a problem which has for some time been exercising the most distinguished moral philosophers of our age” (151). The author of the letter, who takes Rivière to be “a wretched, a diseased, an unfinished being” (152), considers that because the young man’s judges could not classify his form of insanity they sought to cut “through the tangle of such questions [by] … cutting off a man’s head” (153). Though not willing to go as far as the defense counsel, and call the death penalty judicial murder, the writer deplores “from the depths of our heart the fact that once again we have had to resort to the executioner to cure the maladies … of persons and societies” (154). And in terms that approach Hugo’s descriptions of the bloody guillotine, the letter concludes:
Blood should answer for blood, it is said.… Well, the fatal sentence has been delivered; the blood will flow if it is not arrested in time.… But may we be permitted to lodge our own appeal … and to cry to the judges before whom Rivière will have again to appear or to the Sovereign who may be called upon to exercise his prerogative of mercy: pity for him, pity, but not infamy; and, above all, not the scaffold! (153–54)
Pierre Rivière’s extenuating circumstance is his state of mind. At the outset, in plain contrast with appearances of insanity, that mind is found to be a prodigious one. In referring the case for prosecution, the Pretrial Court (Chambre d’Accusation) has difficulty reconciling Rivière’s acts with “the gifts so liberally imparted to him by nature without any assistance whatever from education: a remarkable memory, a great aptitude for the sciences, a lively and strong imagination coupled with an eagerness for instruction and the achievement of glory” (45). That perplexity is produced especially by Rivière’s having completely changed his story between the first interrogation, when he claimed to have been acting under God’s commands, and the second, nine days later, based on the memoir he had written in the interval, which justified the crime on the basis of his parents’ marital and financial distress, more precisely the torment to which, he believed, his mother had subjected his father. A similar perplexity is emphasized in the prosecutor’s indictment. Rivière’s “unconcern [insouciance]” (PR, 48; Moi, 67) for his crime, and an appearance of “mental derangement” (ibid.) in his explanations raised the question of a faked insanity, but his keen intelligence supported instead the idea of crimes that were “meditated, calculated, and prepared” (ibid.). He was therefore considered to have “full and entire knowledge [la conscience la plus complète]” (49; Moi, 67) of his actions.
A small arsenal of medical opinions was mobilized to decide on the soundness of Rivière’s mind. Before the trial, two opinions were sought. Dr. Bouchard found him in good health, if “of a bilious-melancholic temperament” (122), but showing no sign of “any derangement of the mental faculties” (123). The doctor professed a lack of qualifications when it came to making a phrenological assessment and so attributed the crime to “a state of momentary over-excitement [exaltation] brought on by his father’s tribulations” (124; Moi, 152). Dr. Vastel, who claimed to be “more fitted than anyone else” (125) to give an opinion, wrote a much longer report that developed precisely a theory of hereditary “mental alienation” that was alleged to have produced a “originally defective organization of Rivière’s brain” (127). “Truly, I have never seen a more manifest case of insanity among the hundreds of monomaniacs I have treated,” he declared (131), concluding therefore that Rivière should be found not guilty of the crime.
At the trial itself, depending on which archival report is consulted, two, three, or four more doctors were called to testify; some supported Dr. Bouchard’s judgment, while others supported Dr. Vastel’s. Once the guilty verdict was returned, and the appeal rejected, final recourse was had to King Louis-Philippe. On that occasion, according to Le Pilote du Calvados, “a considerable number of leading Paris medical experts [sommités médicales de Paris]” (163; Moi, 205) were asked to give an opinion. Indeed, a statement was signed by seven such august persons as the chief medical officer of the asylum of Charenton, the dean of the Paris Faculty of Medicine, the king’s court physician, and the permanent secretary to the Royal Academy of Medicine. In it, the experts roundly rejected the reasoning of Dr. Bouchard, whom they reproached for declaring Rivière sane solely because he did not fit any of the categories of insanity that were familiar to him, and agreed instead with Dr. Vastel that the convict had shown signs of madness since he was four years old and that his crimes were “due solely and exclusively to delirium” (165).
Though in 1835 we are some sixty years before Freud’s discovery of the unconscious, the nascent science of psychiatry is developing in significant ways. We noted in Chapter 2 how Philippe Pinel had gone from witnessing the first test of the guillotine at La Bicêtre Hospital in 1792 to freeing deranged patients from their chains at La Salpêtrière asylum in 1795, setting up another uncanny parallel between post-Enlightenment inroads, successful or unsuccessful, into treatments of criminality and insanity. By the middle of the century, the parallel is reinforced by the coincidence of the Second Republic Constituent Assembly’s attempts to abolish the death penalty, and further reforms represented by the English Lunacy Act of 1845 and the work of Bénédict Morel in France.12 At the time of Rivière’s crime, his disease could be diagnosed as monomania but, as we saw, phrenology competed with other scientific research in prescribing treatment or in inflecting conceptions of criminality. On one side, then, there existed an idea of delirium that was increasingly related to heredity; on the other, a presumed physiological defect susceptible to phrenological diagnosis. It could be said, though, that whereas criminological medicine had not yet been called upon to deal with the radical temporal disjunction that is the unconscious, it was beginning to understand a crime within a causal context whose time far exceeded that of the act itself; a time that reaches back into previous generations, or back to the formation of an individual’s skull. In the case of Rivière, what will indisputably emerge is the idea that such a time of the criminal act must be extended on either side of the fateful noontime moments of June 3, 1835, thanks to his memoir. Thus, if the time of the mind has not yet been complicated by theories of traumatic memory or the operations of the unconscious, Rivière’s memoir will nevertheless provide a sufficient reservoir of accumulated symptoms and motivations to seriously complicate or extenuate the cause and effect logic of the crimes he has committed, and, as we shall see, to expand discussion beyond the bounds of the purely jurisprudential.
The memoir is therefore the second factor disturbing the chronology of Pierre Rivière’s crime. It is a fifty-page manuscript—composed in an imperfect written French that the editors of I, Pierre Rivière leave as is, except for adding capital letters and some punctuation—written between July 10 and 21, 1835. In making his report to the director of criminal affairs following the conviction, the presiding judge notes that the memoir shows both “great intelligence and the greatest possible aberration of judgment,” adding that “though Rivière received only a village education, the style is tolerably correct, and it contains passages of remarkable eloquence” (145). The sage Paris doctors find in it further signs of Rivière’s delusion, inasmuch as it “demonstrates a profound and consistent aberration of his intellectual faculties and moral feelings,” in spite of “the soundness of memory and the sequence in the ideas” that the narration displays (164).
Much could be said about the memoir on its own terms, and indeed the members of the research group that published I, Pierre Rivière were very frank in admitting that what led them to spend more than a year on the project “was simply the beauty of Rivière’s memoir. The utter astonishment [stupéfaction] it produced in us was the starting point” (PR, x; Moi, 11). But of particular interest to me is a certain mechanics of interference in what we might call the chronologicality of the Rivière case, the memoir’s disruption of the time machine of this death penalty.
Rivière announces his memoir at the end of his first questioning session on July 9, 1835. He had maintained throughout that interrogation that he performed the murders on God’s orders, the same God who, as he read in Deuteronomy, ordered Moses to slay the adorers of the golden calf, “sparing neither friends nor father nor son” (cf. PR, 20). But when asked again to “tell us frankly today, what cause could have led you to murder your mother, your sister, and your brother,” he replied that he no longer wished “to maintain the system of defense and the part which I have been acting. I shall tell the truth” (23). According to the examining judge, there then followed Rivière’s detailed account, lasting more than two hours and narrating the “innumerable afflictions which … his father suffered from his wife. Rivière promises to communicate to us in writing what he has stated to us by word of mouth” (24). In that sense, the memoir represents the confession that the examining judge had asked for earlier in the interrogation: “You claim to excuse your crimes by saying, which is absurd and impious, that they were ordered by God; confess rather that, being unluckily born with a ferocious character, you wished to steep yourself in the blood of your mother whom you had long abominated” (21). It represents that confession, and, within the logic of a confession, it functions as a form of exculpation that might eventually constitute an extenuating circumstance. But, according to a somewhat predictable prosecutorial trap, the facts recounted in the memoir came, in the second interrogation, on July 18, to provide evidence of a sound criminal motive and so reinforced the charge of premeditated murder. Questioning, based both on the memoir and on witnesses’ accounts, concentrated on behavioral anomalies, most of which allegedly pointed to Rivière’s penchant for cruelty: holding his brother’s legs to the fire, frightening children, crucifying frogs and birds, carrying nails or brads in his pockets, threatening his brother, maltreating horses, conducting a mock funeral for a jay, taking his clothes off in the stable, and—pièce à conviction, to which I will return—inventing and naming an instrument for killing birds (34–38).
The memoir begins thus: “I, Pierre Rivière, having slaughtered my mother, my sister, and my brother, and wishing to make known the motives which led me to this deed, have written down the whole of the life which my father and my mother led together since their marriage.… I shall then tell how I resolved to commit this crime” (54–55). He recounts much further along that that resolution was fixed after meditating on it for about a month (105). His original plan was to write the memoir before committing the crime, “to put an announcement of the deed at the beginning and my reasons for committing it at the end … then to commit my deed, to take my letter to the post, and then to take a gun I would hide beforehand and kill myself” (107). He stayed up several nights writing “the announcement of the beginning,” but his sister discovered his nocturnal activity and asked to see the document, which caused him to hide it and later burn it. He then reasoned it would be better to keep the announcement of the deed until the end, and so began over a sequence of nights to write the story of his parents’ marriage, but invariably fell asleep. That led him to yet “another decision, [and] I gave up writing.” Instead of writing the memoir before the murders he would go to the police immediately afterward and “make my declarations” (ibid.), but that would require his dressing in his Sunday clothes in order to show appropriate respect to his judges. A series of dress rehearsals and false starts ensued before he resolved that he could explain himself “quite as well without wearing good clothes” (111), and eventually the fateful Wednesday arrived.
Conceived in order to assist in or even bring about the crime, the memoir was treated from the moment of its appearance as though it formed part of that crime. In his commentary on the archive, entitled “Tales of Murder” (Les meurtres qu’on raconte), Foucault takes that interpretation further:
The fact of killing and the fact of writing, the deeds done and the things narrated, intersected as elements of a like nature.… The murder and the narrative of the murder were consubstantial.… For in Rivière’s behavior memoir and murder were not ranged simply in chronological sequence—crime and then narrative … a whole web of relations is woven between the one and the other; they support one another and carry one another in ever-changing relations. (200–1)
Before returning to that analysis of the relations between word and deed we should note Foucault’s other emphasis, in his commentary, on the extended sociological context within which Rivière’s memoir appears. That context is one of a general narrative discursivity that was regularly committed to writing, constituting “a kind of popular memory of crimes” (PR, 203–4) that is reminiscent of the proliferation of textual records that, as we saw in Chapter 2, existed in America from the time of the execution sermon and into the nineteenth century. Foucault understands the purpose of such broadsheets, at least in France, to be to enlarge the compass of the human interest story to the point where “the village or the streets, of their own accord and with no outside intervention, came to produce history” (205). So it was that a flysheet eventually appeared under the title “Judgment of the Caen Assize Court,” recounting the story of Pierre Rivière, but with significant inaccuracies: the case was dated 1836; Rivière was said to have been executed in February 1837; and he supposedly killed two brothers for a total of four murders. As was often the case, the account of the crime was followed by a “Sorrowful Lamentation” in four verses to be sung to the tune of “Un chien fidèle.”13
In other words, one way to treat Rivière’s memoir would be as part of the more or less fictionalized accounts of such events that would come eventually to constitute folklore, notwithstanding the ability of those accounts to perform an important role on the fringes of the judicial, and notwithstanding the exemplary features of this particular text. But Foucault’s thesis is a much stronger one, according to his theory of discursivity made explicit at the time, namely that “Rivière … accomplished his crime at the level of a certain discursive practice and of the knowledge bound up with it” (PR, 209).14 With or without the memoir, Rivière as fact of history (the crime) could not but constitute a discursive practice relating to knowledge as a function of power. At a certain level, this lowly peasant living in a village outside the recognized institutional forms of knowledge and power came nevertheless by his act and his words to participate in that nexus in a significant way, even if it ultimately meant activating a type of powerlessness. But once there was his memoir, the configuration of that nexus came to be altered much more significantly: the fact of history became inextricably tied to his peculiar narrative of it.
Foucault summarizes that complicated mechanism in this passage, which I quote at length:
In all these transformations [Rivière’s changing plans regarding the crime and the memoir] the text and the murder kept changing places, or, to put it more precisely, moved one another around. The narrative of the murder, originally intended to come at the beginning of the memoir, fuses with it and becomes diffused in it; it is concealed by the text, which would not now narrate a premeditated murder, but would be a secret codicil to it; and in the end, the proclamation of the murder is placed not only at the end of the memoir but after the murder itself. The murder, too, has been reversed and has gradually become disengaged from the memoir; from the original intention that it should happen after the memoir was written and simply for the purpose of triggering its dispatch it has broken free and has at length arisen to stand alone and to happen first, propelled by a decision which had determined the narrating of it, word for word, but without being written down. (202)
It is clear, on Rivière’s admission, that his crime required the writing of his memoir, that his action required an elaborate discursive apparatus that, however much it have the appearance of a simple, if detailed exculpation—my father’s treatment at the hands of my mother necessitates the just resolution that I alone can provide—quickly began to interfere differently with the commission of the act: I cannot commit the murders until I have written the memoir, and now that my sister knows I am writing, I have to destroy what I have said, reorganize the order of events in my writing, and do so in greater secret; but the crime will have to wait as a result. Or: Having abandoned the memoir because it is proving too difficult to write, I will now have to commit the murders in my Sunday clothes in order to be able to go straightaway to the authorities to tell them what I had wanted to write in the memoir; but dressing in my Sunday clothes on a day other than Sunday draws attention to myself and delays the crime again, differently. Similarly, once he has been arrested: I won’t tell you why I did it except to say that God commanded me, even though I have a whole rational explanation in my head; on second thought, I will tell you, and indeed I will write it all down.
Only once he has written the memoir will he feel that his complicated task has really been accomplished. At that point the memoir takes on another, juridical life that is of course no less intricately woven into the crime; it is taken to be confirmation either of Rivière’s monstrously calculating mind or of his absence of reason. But for Rivière himself there was no question of seeking exculpation or of providing extenuating circumstances. As he concludes, logically and teleologically rounding out what he had begun:
They told me to put all these things down in writing, I have written them down; now that I have made known all my monstrosity, and that all the explanations of my crime are done, I await the fate which is destined for me, I know the article of the penal code concerning parricide, I accept it in expiation of my faults … so I therefore await the penalty I deserve, and the day which shall put an end to all my resentments. (121)
No doubt, then, that Pierre Rivière slaughtered his mother, brother, and sister, fled and wandered, was arrested, wrote his memoir, and was tried and convicted, all in that order. That is the chronological, narrative order of the crime. But Rivière’s own narrative, in the form of his memoir, orders things differently. That is so in the first place because its account is entirely retrospective, which means that it conjures up the whole, mysterious temporal order of memory; and memory, however meticulous, produces its own compressions and accelerations, its priorities and peripheralities. In the second place, his narrative reveals an intricate, and confused ordering of telling, imagining, motivating and acting. As a result, the memoir attaches to the crime a narrative time that opens the space of fiction, a space that is subject to a complicated play of analeptic, suspensive, and proleptic structures.15
Crime necessarily begins as a fiction, fantasy, or imagining, one that can be short or long. That is what we think of, and what the law requires, as some form of premeditation. If a crime such as murder is not to be considered as a pure reflex action—as, say, automatic self-defense—then it will require some nonreal imagining of the act. In Western jurisprudence, criminal intent or premeditation, what is called mens rea, is required as the basis for the criminal liability of an actus reus. From that perspective, the deliberate account and explanation produced before commission of the act, which Rivière set in motion by undertaking to write his first, later destroyed, version of his memoir, would be but an exceptionally elaborate narrative form of the intent that is understood to be formed in the mind prior to every criminal undertaking. Like any crime, Rivière’s begins as a type of narrative fantasy or fiction that only rarely is put down on paper.16 One could say the same of any act, but the obvious difference is that criminal law incorporates this necessity as a formal structure that—and this is what counts for me—has its own time. If fictive intention were to coincide with the act such that one could not be distinguished from the other, then there would be no crime in the first degree. Premeditation, or malice aforethought, is understood to have its own chronological status distinct from the act that it motivates and directs: An “I want to kill you” that also means “I imagine myself killing you” functions as a fictionalized enactment of the event before the event; and it is, furthermore, recognized or even required by the law. It is as if, once the event of a crime takes place, then judicial process will be required to go back over that preexisting space of fiction and reconstitute it as truth, precisely by proving its attachment to the criminal fact that it will have produced. What was aforethought without commission, pure imagining, will come instead to be understood as a seamless relation of intent and event.17 But the law will continue to require both a recognizably temporal and conceptual separation of intent from act, and a melding of that same intent—become motive—to that same act.
The first two-thirds of Rivière’s memoir, as initially envisaged, operate within the ficto-discursive time that I have just described. His “Summary of the tribulations and afflictions which my father suffered at the hands of my mother from 1813 to 1835” is as meticulously biographical, hence factual, as he can make it, but it is entirely constructed as a proleptic announcement of “this fearful resolution, I determined to kill all three of them” (106). If things had gone as he originally planned, the document would have existed in its own discursive time, expanding to allow whatever detail he chose to include, potentially ad infinitum; and it would have been interrupted or concluded only by the murders themselves. At that point, it would have become both confession and suicide note, the only relevant element, apart from official statements, of any judicial process. Conversely, should the crime not have been committed, Rivière’s narrative would have remained a type of hallucinatory fiction, suspended in its own time, failing to produce any criminal act.
The subsequent and actual, retroactive form of the memoir causes it to function differently, as a form of confession as already mentioned. But that analeptic structure retains within it the prolepsis that originally constituted the text, giving to the memoir a time of its own prior to the event of the murders. The “Particulars and explanation of the occurrence on June 3 in Aunay at the village of La Faucterie written by the author of this deed” (54), which are in fact recounted only some fifty pages into the text (in the English edition)—and which are followed by another ten pages describing Rivière’s wanderings during the month preceding his arrest—thus have as countercurrent the intervening forty-five-page “Summary of the tribulations and afflictions which my father suffered” (55). That summary constitutes the malice aforethought of the fearful resolution Rivière will then announce as its consequence.18 Yet, prior to the act described by the text’s first words there was an intention that gave rise to an aborted version that nevertheless now resides within the final version.
On the other side of the act, there exists a whole other digressive possibility, or narrative divagation, in Rivière’s account of his month-long wanderings. Following the murders he is less a man on the run—or if he is that, it is only half-heartedly so—than someone developing the story of a new, solitary, and self-sustaining existence. If is as if, in deciding not to turn himself in to the authorities but instead to begin a month-long meander, he were opening a new narrative chapter that would surprise and alter the memoir’s ending just as his sister’s intrusion had surprised and altered its beginning, surprising and altering also the chronology of the murderous acts themselves.
As I understand it, the opening of the ficto-discursive time of intent represents the first in a series of what I have already referred to in passing as deliberative times of the judicial process, which exist in tension with its decisive moments. The conceit of my whole discussion is to cite the instant of the death penalty as the decisive moment par excellence, appropriated for its absolute finality. But the processual rhythm—deliberation, then crime; investigation, then indictment; trial, then verdict; hearing, then sentencing—works according to an alternation between deliberation and decision, where the suspensive time of deliberation cedes to the sudden time of decision. Each of those moments of decision is also an instantanization; in French it is called an arrêt, an arresting or stopping of time, as in the term arrêt de mort for “death sentence.” At the end of each phase of the proceedings there occurs that type of arrest of time by the instantanization of the decision. Although legal proceedings involve a particular formalization of such a logic, it operates throughout our understanding of action in general.
The rhythm of deliberation and decision might also be understood to continue once a convicted criminal is required to serve a sentence, for example a prison sentence: It has a duration and an endpoint (even if, in cases of life in prison without parole, that endpoint is death), and in many cases it offers the possibility of being interrupted, for example by a positive decision at a parole hearing, and in more general terms by the presumption of rehabilitation and the paying of the criminal’s debt to society. But of course the opposite is true in the case of a death sentence. The death sentence not only interrupts deliberative time with an absolute decision, but it also brings to a halt any possible future decision. For, as Derrida explains in the pages where he outlines the principle of mortal time that underwrites my whole project here, what permits the future for a mortal being is precisely the undecidability of that being’s future. Not knowing when one will die allows one to envisage—without knowing—that future: “It belongs to life not necessarily to be immortal but to have … some life before it.… Where the anticipation of my death becomes the anticipation of a calculable instant, there is no longer any future” (DP I, 256). Once that principle of indetermination—the suspension of death, the arresting or reprieve of the ordinary mortal’s death sentence—is replaced by the determination, imposition, and calculation of a time of death, then mortality is not reaffirmed but instead foreclosed:
What we rebel against when we rebel against the death penalty is not death, or even the fact of killing, the fact of taking a life … [but the fact of being told] you will die on such and such a day, at such and such an hour, in that calculable place, and from blows delivered by several machines, the worst of which is perhaps neither the syringe nor the guillotine, but the clock and the anonymity of clockwork. The insult, the injury, the fundamental injustice done to the life in me, to the principle of life in me, is not death itself … it is rather the interruption of the principle of indetermination, the ending imposed on the opening of the incalculable chance whereby the living being has a relation to what comes. (ibid.)
Although life and fate, being itself, will have decided, from the moment we are born, that we are to die, we will nevertheless live in the suspension of that sentence. But paradoxically, we can enjoy that suspension of our death sentence only because we know we are going to die. If we were born immortal we would not have that possibility, we would not have available to us the opening onto a future that comes from knowing our future is not open-ended. Similarly, and similarly paradoxically, “what is ended by the possibility of the death penalty is not the infinity of life or immortality, but on the contrary, the finitude of ‘my life.’ It is because my life is finite, ‘ended’ in a certain sense, that I keep this relation to incalculability and undecidability as to the instant of my death” (DP I, 256).
That is the logic according to which the death penalty disjoins mortal time, a disjoining that this book has examined from various angles. Although Rivière will have his death sentence commuted, definitively suspended, his memoir will have opened the strange temporality of such a sentence, and, as it were, will have produced the disarray of times that we have just analyzed. Granted, he began by envisaging nothing less than a self-imposed death sentence, a decision to commit suicide which he ultimately carried out, but that decision is countermanded and complicated by the decision to write an explanation that immediately begins to function as an attempt to forestall the fate he had in store for himself; as long as he was explaining why he had to commit the murders, those acts remain suspended in narrative time. Hence, on the one hand, one could simply say that he needed to talk (or write) himself into (or perhaps out of) the actual commission of the awful act, an idea that is reinforced by his false starts once his “fatal resolution” was made; and, by his own admission as the time approaches, that “I am no coward yet I will never be able to do anything.… I was held back by what I then called my cowardice” (109). On the other hand, whether one subscribes to an idea of writing as therapeutic or simply distinguishes among different ways of occupying oneself, one understands the act of writing about, supposing, or imagining murder to function in a different space from the act of murder itself, as we have seen; and specifically, from my point of view, one understands it to function in a different, suspensive time.
We encountered a form of that suspensive time in chapter four: first as an intolerable moment that the suicide assassin Ch’en had to break through; then, very differently, as the strange atemporality of the “unexperienced experience” of death that Blanchot writes about in The Writing of the Disaster, and that his narrator stages in The Instant of My Death.19 In his commentary on the latter text Derrida orients his analysis through what he terms the “disturbing complicity between fiction and testimony” (Demeure, 43) deriving from the dual status of a testimony: it must be a unique account by a singular witness who, in a sense, “alone” saw or heard what he or she recounts; but it must also recount what anyone else in the same place at the same time would have seen or heard, and it must be able to be recounted in contexts that are radically separated from the original event that gave rise to it, which ruptures its very uniqueness and opens testimony to the structure of fiction (40–42). Rivière’s memoir instantiates precisely that unstable status of testimony, but not just because, as confession made by the murderer himself, it is less deserving of our trust and will necessarily be received as an attempt at exculpation. More precisely, the memoir comes across as unmoored in time in the way that Foucault describes, but which Derrida ascribes to any testimony to the extent that it shares the space of fiction: the fact of its breaking with “a certain commonsense ordering of time” (Demeure, 49). From its opening moment, when the memoir states what should be its singular truth—I, Pierre Rivière, have slaughtered my mother, my sister, and my brother—its reconstruction of that singular moment stretches and warps it: back into the part-private, part-public, part-familial, part-socioeconomic time of Pierre’s father’s tribulations; sideways into the fantasmatic time of his childhood antics and libidinal disarray; forward into the meandering time he spent on the lam; and upward into the feigned time of his initial God-told-me-to-do-it defense. Each of those temporal warps constructs and recounts a different crime: a humanitarian retribution, the act of a sociopath, a function of amnesia, a crusade; and each operates as a fictional narrative in its own right, suspended in its own time.
Once narrative or suspensive time—that of Rivière’s memoir, that of literary fiction in general—comes into play, something else opens up: the extreme abyssal structure of words themselves. The free flow of the memoir, like the seemingly limitless quality of the literary, comes not only from the capacity of narrative to spin out its yarn endlessly or repeatedly—the Scheherazade mechanism—but also from the way in which this or that word opens up its own suspensive depth of nuance, evocation, cross-reference, and so on. For that reason Foucault argues not only that “the text and the murder kept changing places” (PR, 202), but also that Rivière’s imaginings gave rise to “verboballistic inventions” (203) such that the murder appears a little like “a projectile concealed at first in the engine of a discourse which recoils and becomes unnecessary in the propulsion discharging it” (202). That is to say: Whereas, according to Rivière’s original plan, the murder would be first verbal or discursive before bursting forth as act to replace that discourse, the young man’s investment in verbal discourse as displayed in the memoir also reveals itself as an investment in the idiosyncratic force of words in their own right, as “acts,” one might say, their being a type of imaginary weaponry. As we learn from the memoir itself, his words were indeed being used to aggress or ward off attack, and his most inventive language was reserved for apotropaic purposes. Some forty-five pages into his memoir, after completing his review of his father’s tribulations, and now promising “to explain my character and the thoughts I had before and after this deed” (100), Rivière tells us that he “displayed singularities” (101) that attracted the mockery of schoolmates. That peculiar behavior included: cutting heads off cabbages as though they were troops arrayed for battle (ibid.); avoiding getting close to female members of the family because of his troubling “carnal passion” and “horror of incest” (102); being “preoccupied with my excellence” (ibid.); imagining he could take his revenge on those who mocked him (or the girls who, knowing his neurosis, ran after him to kiss him) by “making writings about all of them … put them to scorn and have them driven out of the district” (103); and crucifying frogs and birds or attaching them “to a tree with three sharp nails through the belly. I called that enceepherating [enceepharer] them” (104).
More interesting, though, are the machines he imagined he would invent—a self-propelled butter churner, a carriage driven by springs, “which I wanted to produce only in my imagination” (ibid.)—including, in particular, “a tool to kills birds such as had never before been seen” to which he gave the name calibene (ibid.). In a way that is strikingly similar to his approach to the memoir itself, he worked on the machine “for a long time on Sundays and in the evening, and finding that it did not succeed as I had expected, I went and buried it in a meadow and later I dug it up again and it is still on the floor in one of the houses” (ibid.). Along with the calibene there were “bows which I called albalesters [albalêtres], and I busied myself in trying to get one to go off” (104). The albalester—first a word, then a functional object—opens up a whole new proleptic time and space within the memoir and within Rivière’s acts and lives, for “I was arrested with one and though I said I had made it in order to pass for mad, yet it was not exactly that” (ibid.). That is, even though the plan to announce the murders in writing before committing them failed, the albalester begins as an invention of both word and thing that fails, but keeps itself afloat as a possibility until he is living his new life on the lam, at which point he fabricates such a bow, so successfully that he is able to use it both to hunt birds and to get himself apprehended. For, even though it doesn’t catch him a bird, it does allow him to be noticed in town as “a fellow carrying a bow” (120), and eventually to be captured. Where the memoir failed to denounce his intentions as planned, the albalester succeeded, identifying him as a stranger in town, as the strange madman he wanted to be taken for, and ultimately as the hunted criminal murderer of his family members.
Rivière is asked about the bow during his first questioning, and about the calibene during his second interrogation. In the first case the examining judge suggests that the weapon was an offensive one, whereas Rivière asserts it was for killing birds. In the second case the judge names the word Calibene, and it is indeed not clear from the memoir whether it is intended as a common noun or proper name when Rivière writes that he “named it ‘calibene’ ” (103), a doubt that persists in the course of the questioning. When asked about the meaning of the word Rivière emphasizes the fact of invention, the invention of the word perhaps even more than the invention of the thing: “I imagined that word; I tried hard to find a name that could not mean any other instrument” (37).
Rivière’s memoir therefore sets in motion a suspensive time machine that will regulate his relation to his crime, and at the same time puts into operation the hauntingly resonant time of the word, of the word as machine. The word will always be the motor of the deliberative process of justice, the narrative and rhetorical instrument of court proceedings, even though it function with the prospect of bringing an end to deliberation by means of verdict, sentence, or committal. It will be enacted right up to and including the sentence of death and execution, each of those events requiring the formulaic performance of a decree, all the way to the medical and administrative pronouncement of death itself having occurred at such and such a time. But throughout that process and those procedures, the word will haunt decision as its deliberative other, as if threatening to suspend the decision indefinitely, holding up the judicial act as long as rhetorical ploy or pleading—or the presiding judge—allows. Pierre Rivière’s memoir focuses on the fact and acts of verbal discourse functioning in their own time, overlapping with the murder itself and uncannily disturbing the time of both crime and punishment.
The word-machine would be the opposite of the trap door image. In opening suspensive time “beyond” the sentence it will allow for a literature that can potentially digress ad infinitum: words on automatic pilot that produce their own perpetual motion. None of that flow of words will ever prevent, in the sense of substituting for, a real execution, even though, like literature of any persuasive or militant nature, an abolitionist literature such as that of Victor Hugo remains capable of inflecting attitudes toward the death penalty; and literature of the death penalty, some examples of which have been mentioned in earlier discussions, constitutes a relatively abundant genre.20
Among writers of the Western tradition who have made penalty, penality, and death their subjects, one stands out clearly, having lent his name for a word that describes par excellence the machine of a suspensive time that, unfortunately, has nothing redemptive about it. It is thanks to the name and fictions of Franz Kafka that we have a word for the labyrinthine operations of a justice that is more mad than blind, operations that we call “Kafkaesque.” We could use that word to describe the cruel and absurd injustice of a death penalty as experienced so far by Richard Glossip in Oklahoma. I say “experienced so far” because he has continued to experience or live through that death penalty after eating his last meal three times, awaiting the next time he will be led, following his nearly two-score-year limbo on death row, to be strapped again to a gurney. During the years that have elapsed since I began to write the Introduction to this book in 2014, he has continued to inhabit that Kafkaesque space and time.21 We could also use the word “Kafkaesque” to refer to a secret process that targets for instant killing an unidentified person spotted behaving aberrantly by a drone operator some nine thousand miles, two continents, and an ocean away. Or, consonant with my emphasis throughout this book, we could call Kafkaesque the decision to impose categorically on a given fellow human a time that is foreign to human time, a time whose opening to the future is defined instead as the progressive closing of the doors of possibility and potentiality.
When it comes to the death penalty in Kafka the text of reference would of course be “In the Penal Colony.” There, Justice Blackmun’s machinery of death finds its literal application in the inscription of the law in real time upon the body of the condemned. As the officer explains to the explorer, “Our sentence does not sound severe. Whatever commandment the prisoner has disobeyed is written upon his body by the Harrow.”22 That grotesque procedure reminds us again, as if we needed to be reminded at this late stage, that punishment as a concept is inseparable from duration, that in many respects the pain that punishment inflicts is the very time of its infliction, the duration during which it must be endured. For the execution machine of “The Penal Colony” is designed to puncture the body, writing the law at an increasing depth, and with increasing pain, for a period of twelve hours: “So it keeps on writing deeper and deeper for the whole twelve hours. The first six hours the condemned man stays alive almost as before, he suffers only pain.”23 But the second half of the punishment brings about a consciousness beyond pain, something approaching Hegel’s absolute knowledge, inculcating in the condemned person the very spirit of punishment and of the sentence:
But how quiet he grows at just about the sixth hour! Enlightenment comes to the most dull witted. It begins around the eyes. From there it radiates. A moment that might tempt one to get under the Harrow oneself. Nothing more happens than that the man begins to understand the inscription, he purses his mouth as if he were listening. You have seen how difficult it is to decipher the script with one’s eyes; but our man deciphers it with his wounds. To be sure, that is a hard task; he needs six hours to accomplish it. By that time the Harrow has pierced him quite through … 24
“In the Penal Colony” illustrates, however figuratively, that no technology can be attached to the human body without being accompanied by time, without that technology being inscribed as a form of time. As I have argued previously, technology is most obviously about saving time for the human; a machine that works gives the time it saves back to the human. But it is also because technology functions in time: time itself is its medium and substance. Technology begins as soon as the human, supposedly secure in its self-enclosed existence, reaches outside itself to encounter the time of the inanimate: Objects that predate it, have their own history, are capable of outliving it, can still be functioning once a given human has ceased to function. So it might be said that before there is any encounter with the inanimate object itself, there will have already been an encounter with its time, with time as the artificial construct that is required if the human is to know that object, for the human to articulate and negotiate with it as technological object, as a result of which she can use it to save time. It is in that sense that time might be called the first technology, what comes into play immediately as another pulse, rhythm, or speed the moment that the human reaches outside itself.
Yet, of course, what has just been described as “beginning” once the human reaches outside itself also reaches back to disturb the supposed watertight distinction between what is inside and what is outside the human, the extent to which technology is limited to inanimate objects constructed by the human outside itself. We saw how that problematic functioned in the case of the blood, as Hegel understood it, in Chapter 3. In Hegel’s terms the internal pulse of the human finds its way to the surface on the way to reacting with the inanimate outside that it hopes to subdue: that encounter is effected, and the victory of the human affirmed, as blood overcomes and assimilates air, taking it back in and putting it into circulation as its own matter to assure its sustenance. But that blood cannot in fact reach out to sublate the “purely negative immaterial life” of air without somehow recognizing an interruption in, and problematization of its idealized circulation. Either the blood that flows internally to preserve the intact sustenance of the human is imagined to “step outside” itself, or we realize that it was never in fact flowing without interruption, being subject rather to the rhythm of the mammalian body’s own internal machine called the heart.
Kafka’s penal colony execution machine, his time-inflicting punishment machine, or punishment-inflicting time machine of death, is a perverse staging of time being used not to open the mortal future but to foreclose it. When the human encounters, discovers, or invents time as an external apparatus to measure her days, she gives it an autonomy that is precisely an automatism, allowing it, as I have just described, to function indefinitely into the future. The penal colony time machine is instead an apparatus for interrupting that mortal time. For the period of its functioning it grotesquely mocks the mortal invention of time by superseding it, inflicting a defined and limited time, six hours of pain and six hours of enlightenment. Time as mortal law, the law of finitude, is mechanized and perverted into an apparatus that will sew itself back into the human as finitude. The Harrow punctuates such a time, indeed punctures the body with its force and truth; it gives back the time it has saved for the human with a vengeance, brutally marking out points of time on the exposed spaces of the victim’s body, and eventually subjugating and destroying that body by piercing the seat of its consciousness.
Granted, in Kafka’s narrative the time-inflicting execution machine breaks down. It coughs and splutters, requiring the endless tinkering that the officer describes, as a result of worn cogwheels, unavailability of spare parts, broken wrist strap, filthy felt, insufficient funding. But it breaks down far more fundamentally once the explorer refuses to represent to the new Commandant the officer’s plea for a return to a smooth-functioning death-dealing machine. In the face of that refusal, the officer declares that “ ‘the time has come [dann ist es also Zeit].’ ‘The time for what?’ [Wozu ist es Zeit?] asked the explorer uneasily, but got no answer.”25 The reader soon finds out that what it is now time for is for the officer to subject himself to the machine, to execute himself with the maxim “be just,” to show how staggeringly well “he managed it and how it obeyed him,” such that he does not even have to activate the lever to set the Harrow to work. It obeys him and begins to function without “even the slightest hum.”26 It seems then as if the punishment machine were about to inscribe not the law but rather the loftier ideal of justice. Justice, however, is precisely what cannot be designed; it cannot be written, it does not have sufficient intricacy for translation and transmission from Designer to Harrow. Thus the cogwheels of the Designer fly off one by one until “the Harrow was not writing, it was only jabbing.” As a result, what is supposed to take twelve hours of exquisite torture is reduced to “plain murder [unmittelbarer Mord],”27 and the Harrow grinds to a halt holding the corpse with its spikes, like a guillotine blade to which the head remains attached. The officer dies “with the same expression as in life,” deprived of “the promised redemption; what the others had found in the machine the officer had not found.”28 So it is that through all these different killing times—those of the previous victims for whom the machine functioned as planned, that of the current condemned man who is given a last-minute reprieve, and that of the officer, subject to a machine run amok, who is denied the insight of incisively learning to be just—the tethering of a human to a machine means not just the execution of that human, but also the replacement of its time by a mechanized and punctual law.
It is clear that Kafka’s “In the Penal Colony” can be read as a parable for much more than what I call “killing times.” It is a fully fledged literalization of Blackmun’s machinery of death, of all its labyrinthine and cruel ironies, as well as its notorious botchings. Whatever precise textual flourishes of the commandment that the prisoner has disobeyed are to be written into his body, once the lid of the Designer is shut, and the cogwheels set in motion; then the instruments of death set about their business of foreclosing mortal time in favor of seconds that precede extinction. But if “The Penal Colony” is Kafka’s most obvious text regarding the application of the death penalty, it is in another famous story, “The Metamorphosis,” that time as interruption becomes the very mechanism of the death penalty itself.
Gregor Samsa, transformed into a gigantic insect, is not subject to a formal sentence, but when he awakes “one morning from uneasy dreams,” his time begins to be interrupted and reduced by the closing of doors; from that moment on his confinement becomes the progressive imposition of a death penalty.29 At 7:10 that morning, the chief clerk knocks at the front door. Gregor opens it to expose his strange state and appearance to the world. At that moment, and immediately following that moment, when Gregor props himself in strengthening light, against one half of the double door leading from his room to the living room, when he looks from there and sees clear out the open door leading to the hall, to the front door beyond that, to the landing and stairs, seeing in that way the whole layout of his possible escape, at that moment the doors begin, inexorably, to be slammed shut. His incarceration and execution begin. After being driven back into the room by his father, his fate is irrevocably sealed. The different doors leading to his room—just how many there are remains a question—are fully functional at the beginning of the story, but decrease in operationality from the beginning of the second chapter. His room becomes a cell, and the door to the hallway is increasingly the single point of entry or exit, used regularly only by his sister to bring in food, and by her or the charwoman to keep things clean. The word “captivity” or “imprisonment” (Gefangenschaft) is used once, and before his father attacks him with apples his sister announces that he has “broken loose [ausgebrochen].”30 But while it is easy to recognize his incarceration as a form of quarantine, as the family’s rejection of Gregor’s ontological and species difference (“human beings can’t live with such a creature [Tier]”),31 I interpret the doors as less performing a simple spatial confinement than articulating the instant of sentence itself. Each door closed is another end to the future, a closing of future possibility, a further restriction of mortal time. Hence, at the end, with the door to his room “hastily pushed shut, bolted, and locked,” his sister crying “at last [endlich],” and Gregor saying to himself “what now [und jetzt]?” Samsa’s time has been decided and its countdown has begun.32
Everywhere in Kafka’s writing, the time of the law—its process as much as its sentence—operates by means of the door. His haunting performance of legal limbo, “Before the Law,” is, from the outset, all doors and gates: “Before the law stands a doorkeeper.”33 If a doorkeeper stands before the law, then it follows that the law is the door. And of course the short fragment that bears that title will come to be placed en abyme, as if behind a series of doors, in The Trial, recessed or secreted inside the ninth chapter of that novel within a complex layering of allegory and commentary. It inhabits the semidarkness of K’s encounter with the priest, deep within the protagonist’s endless labyrinth of incomprehension and self-deception. In The Trial itself, the moment or episode of before the law comes just when K. has all but escaped from the cathedral (“at the moment he was still free; he could walk on and leave through one of the three small dark wooden doors not far from him”), and he knows that “if he turned around he was caught [festgehalten].”34 But he doesn’t carry on walking, doesn’t exit through the door; instead he stays and is trapped into hearing the priest recount the trap of the law as experienced by the man from the country:
“Don’t deceive yourself,” said the priest.… “In the introductory texts to the Law it says of this deception: Before the Law stand a doorkeeper. A man from the country comes to this doorkeeper and requests admittance to the Law. But the doorkeeper says that he can’t grant him admittance now. The man thinks it over and then asks if he’ll be allowed to enter later. ‘It’s possible,’ says the doorkeeper, ‘but not now.’ Since the gate to the Law stands open as always, and the doorkeeper steps aside, the man bends down to look through the gate into the interior. When the doorkeeper sees this he laughs and says: ‘If you’re so drawn to it, go ahead and try to enter, even though I’ve forbidden it. But bear this in mind: I’m powerful. And I’m only the lowest doorkeeper. From hall to hall, however, stand doorkeepers each more powerful than the one before.’ ”35
And so it goes, ending the only way it possibly could, with the man from the country wasting his entire life in waiting, and finally dying before the law. The paragraphs that introduce the law, supposedly opening it, as the priest explains, exist only to describe a law that is closed, progressively and successively, to anyone naïve enough to address it.
The trap of the law into which the man from the country falls, the same trap within which K. finds himself ensnared, the supreme weapon wielded by the law, is time. The door to the law is a door into a suspension of time; it emblematizes the whole Kafkaesque nightmare of The Trial (“the proceedings gradually merge into the judgment,” the priest tells K.).36 The naivety of the man from the country who finds himself before the door of the law consists in presuming he can sit it out, even if it takes “days and years.”37 But however immobilized before the law he be, however insatiable his patience, for all his misfortune and wasted time, he remains in mortal time, from manhood to old age and death. Conversely, Joseph K’s life inside the law gives the appearance of being all active resistance, but beginning with his incomprehensible arrest in the novel’s first sentence, it comes to be revealed as an abyss of missed appointments, delays, and deferments, continuing until, at the extreme, K. dies within sight of one last open window whose invitation to a mortal future remains beyond his reach. He is executed, by his own admission, “like a dog.”38
With Kafka’s fictions we therefore return to the trap doors of Chapter 2, to various allegorizations of a death penalty that means shutting the door on the future of a mortal. A death sentence brings about the ensuing time warp of what is at the same time a limitation (your life will be over at such and such a time on such and such a date) and a delimitation (you are no longer mortal in the normal sense; you are robbed of your finitude, suspended in a type of deferred un-mortality). As we saw in our earlier discussion, the image of one deserving such a condemnation is drawn so as to evoke a repulsion like that enacted by Gregor Samsa’s family in “The Metamorphosis.” The creature that Samsa becomes—and it is as if his crime is precisely the fact of metamorphosing into such a creature under the cover of uneasy dreams—remains specifically unidentified. In German it is Ungeziefer, which the standard English translation makes an insect. It could also be bug or vermin, but the etymological derivation refers to what is unworthy of sacrifice, a type of pariah animal, something like the worst of the worst of creatures.39 But not only does the reader of “The Metamorphosis” remain in the dark concerning the specific creature that Samsa has become; we are also deprived of a clear image of it. We understand well enough that Gregor is all legs, that he is sticky and has feelers, but at no point do we really see what the chief clerk, the family, the maids, or the lodgers see. We see the horror those spectators experience without really seeing Gregor. For all the visual starkness or graphic visuality of the story, it remains remarkably devoid of a satisfactory version of what in cinema is called the reverse shot; the other characters are as if photographed from Gregor’s point of view without our having access to their own point of view shots.
Kafka’s “Metamorphosis” thus gives us the other side of the instamatic reality of the death penalty—an egregious crime, an irredeemable criminal, a humane execution—that its proponents would have us see. The story has us understand how that image is developed in a dark room such as that to which Gregor is consigned and confined. The darkness of Gregor’s room covers the awful truth that the family doesn’t want to have to face, but it also creates the camera obscura by means of which we are able to see the metamorphosis for what it is. On the one hand, that means seeing the Gregor that the world hides from sight, being privy to the place where he is able to be other—insect, bug, creature, becoming animal—as such. It means seeing the real Gregor in a way that we can understand neither from the word used to describe him, nor from his family’s reactions; it means seeing the real Gregor as he now is. On the other hand, considered from the photographic perspective of the shutter (and the trap door), metamorphosis is understood as the transformation of an instant, of the instant. Gregor’s change takes place in the darkness of his sleep, in a moment when all that can be perceived is a difference between dark and light, but in the moment of development or revelation that is his awakening it comes to light as his metamorphosis. When he awakes and finds himself transformed in his bed, he finds—in one and the same moment—himself, transformation, and the new ontological status produced by that transformation. And each time his attempts to reassimilate are rebuffed and the door to his room is shut, he finds himself again, as if suddenly transformed again, returned to nothing but the company of his transformed self.
Kafka gives us, via Gregor Samsa, the experience of being condemned to an inassimilable otherness, allowing us to share its dark place of ostracism and ultimate death. Gregor’s metamorphosis is an interspecies transformation, but in the dark room of instamatic change there also occurs what I would call an inanimation, whereby the human reveals its intimate relation with inorganic or technological otherness. For the fate of our mortality in general, and the most natural experience in the world, is for a mortal animate being, from the moment its life begins, to have to negotiate with the inanimate, and finally to become inanimate. In that way every mortal human immediately starts metamorphosing into part-thingness; indeed, we must do so if we are to function among the things of the world and integrate them as necessary into our daily dealings and into our bodies. But it is one thing to understand that such a prosthesis of human and technology is coextensive with being human in general; it is quite another matter to be attached, by decree, to a clockwork inanimating machine called the death penalty; a machine that will close the door on your future, and condemn you, by the fiat of a sentence, to the status of the worst of the unworthy-to-be-sacrificed worst on the way to disposable thingness. That is what happens to Gregor Samsa: his metamorphosis is first a reduction to an unnamable liminal creature unworthy even of sacrifice, and ultimately, as the charwoman makes clear, he is merely a “thing” that she is proud to have disposed of.
As this book has demonstrated, death penalty advocates advance their own version of the metamorphosis of human into thingness by relying on an all but instantaneous speed of technology and machine, one capable of transforming the instant of death into the supposed humanitarian advances of the guillotine or lethal injection. Capital punishment, in their view, can be rationalized as performing an almost blissful prosthetic union of human and technology that allows the law to be imposed with humanitarian efficacy. The technological speed of contemporary executions, in the United States, presumes to transform the human into inanimate thing without any loss of humanity; it presumes to effect a metamorphosis that does not produce anything like the unacceptable creature that is Gregor Samsa.
As I have also consistently argued, the recourse to an increasingly refined technology of the death penalty, in its post-Enlightenment Western moment, is used by proponents of a modern or contemporary capital punishment to give us a supposedly convincing image of its justness. And that, in turn, relies on a different appropriation and idealization of the instant. In the same, quasi-imperceptible instant, it is presumed, the machinery of death operates painlessly to fit, as if picture perfect, punishment to crime for only the worst of the worst. The operation is repeated again and again, mechanically reproducing itself with the same confidence. That is what allows it to go on. As if Kafka’s story were being recounted by Justice Blackmun, within days, or perhaps hours, the memory of Gregor Samsa will begin to fade, Grete will spring to her feet and stretch her young body, and the wheels of justice will churn again; another such judicial metamorphosis of the human will take place.
So it is that in the years since 1994, when Blackmun made his vow never more to tinker, and since his death in 1999, the wheels have churned, the tinkering has continued: America’s exceptional death penalty experiment has persisted; its time has not yet run out. The wheels of that machine continue to turn through time, but, as I have attempted to show throughout this discussion, they also turn in time, turning time into something else. The death penalty machine turns the time of ordinary mortals into a time outside mortal time, a time programmed to end. The way that that operates for the person condemned to death is incommensurable with how it operates for the rest of us simply condemned to die. Those subject to a death sentence have their future taken from them and must suffer that dislocated time as duration or endurance of suffering or pain itself. Their prosthetic condition involves first that disjunctive temporality, and second, a forcible technological attachment that ends their life. But, as this book has argued, those whom the death penalty does not condemn are required to deal otherwise with that conversion, or perversion of what we presume to be ordinary mortal time.
What the death penalty requires all of us to face is the prostheticity of our prosthetic relation to time. Whether we knew it or not, from the moment we understood ourselves to be mortal, we became subject to a type of countdown that functioned as a putatively external system of control over our lives; we adopted and adapted to time as that prosthesis, even if we claimed or pretended to be able to avoid or outwit it. Once there is the death penalty, however, and because there is the death penalty, human or mortal time can no longer conceal its technicity. We can no more pretend to experience a prosthetic time as though it were natural. That is not to say that mortal time becomes technological only once there is the death penalty; time, as I have just said, will have always been a prosthesis for all of us. Nor is it even to say that the death penalty reveals the relation that prosthetic technology has both to time and to death; every prosthesis has a different time and life from the human it is attached to, and whom it will likely survive; every prosthesis has the status of an artifact. It is rather that, once the moment of death is situated at a specific point along the time of life—and once prostheses are mobilized to bring about that death—then time reveals its specific artificiality. Time becomes something that is no longer one’s own, and it does so in a very different, particularly contrived way.
Or, to put it differently, we have always been involved in prosthetic relations that extend beyond what we conceive of as “us proper.” That prosthetization is also a temporalization: first, because what we call time is one of its most obvious forms; second, because the prostheses that we attach ourselves to—from simple tools to elaborate memory machines or life support systems—operate in a different temporal mode, and are presumed to survive us, which is how they also relate us to our death. A machine that is set up in order to put someone to death is but an extreme, and noxious, example of that.
In arguing the prosthetic technicity of mortal temporality, as revealed by the death penalty, this analysis advocates more than passively adopting the vague or impersonal idea that as long as capital punishment exists, being so condemned remains possible for everyone. Far from being an obstacle to thinking the ethico-political consequences of the death penalty, an approach to the question that examines temporal technicity has led here to conclusions that are activist or abolitionist, even militantly so. Based on analysis of the instant, the preceding chapters have drawn conclusions as diverse as the contention that because executions take time, the death penalty will always be more or less painful; that the presence or absence of blood is not a measure of the cruelty of the death penalty; that the death penalty is intimately linked with forms of terrorism. In this final chapter we have seen the death penalty time-altering machine operating at the opposite end from the appropriation of the instant consistently highlighted in previous discussions. For all that it requires that pure decisiveness of the instant, the death penalty time-altering machine conversely activates very different extensions of time: the suspended time of death row that we have noted from the beginning; and here, vagaries of process that include, at the outside, stretchings such as those of literary fiction. By concentrating on that outside in this chapter, I seek neither to redeem the death-dealing machine’s appropriative gestures nor to indulge some fantasy of the indefinite suspension of its mechanism, no more than have I, here or earlier, floated the fantasy of our sharing the experience of someone on death row. For the death penalty is still claiming victims in the country that perceives itself as the most evolved of all democracies, and still choosing those victims, for the most part, among the most economically and sociologically vulnerable of its citizens.
The death penalty is still with us. I hope to have shown to what extent it is in us, how intimately it is ours, even in a sense being in our blood. Inasmuch as time makes us, or at least, in my argument, makes us technological, death penalty time remakes us down to the core. The end of the death penalty will not restore to us natural time, for time never was natural. Abolishing capital punishment will not detechnologize time. But it will disconnect us from the mechanics of the special technologizing of time that reduces to pure program. It will unhinge that trap door, blunt that blade, and detoxify that cocktail. The instant will no longer be prescribed or circumscribed in the same way but instead allow access to another, in a time of the future. We will have, in some respect, reconfigured our time being mortal.
The time will now be—open.