Law in Contemporary Society
A Functional Analysis of Audiences to Executions

All is well ended, if this suit be won...

The following is an inquiry into the state’s permitting a private audience to its executions. Why the state executes and whether it should in the first place are topics beyond the scope of this essay, the specific aim of which is to determine what functions private audiences serve in the process of capital punishment.

The analysis begins by considering two alternatives to private audiences: public spectacles and sub rosa proceedings. The state rejects these different procedures for the same reason—in comparison to these other forms of execution, that which allows for private audiences is ostensibly most civilized. Fully public executions would be reminiscent not only of the barbaric rituals of ancient cultures but also of the more recent spectacles surrounding, especially, the guillotine. Even closer to home, lynch mobs have a strong presence in the collective memory (as selective and short-term as it is), and the state has every interest to legitimize its procedure of killing by distancing it as much as possible from this and other forms of public execution. Furthermore, since the non-fulfillment of a desire is easily confused with the non-existence of the same, and since a lack of demand can similarly (i.e., not unassailably) be inferred from a lack of supply, by foregoing public executions the state can claim that its citizens are more civilized—we no longer have (or at least no longer indulge) a morbid thirst. Likewise, a state’s killing exclusively—the qualification is necessary, as we cannot assume that the executions attended by private audiences are the only ones presently conducted by the state—behind closed doors is considered less civilized, along with less trustworthy and less democratic, than a transparent procedure. If a citizenry is aware that its state performs executions but is denied any access to those executions, questions will certainly arise and will likely develop into serious suspicions and misgivings about the clandestine goings-on. In the interests of legitimacy and sustainability, a state would at the very least have to stage an execution with an audience in order to pacify the public.

Avoiding the ills of the alternative forms of executions is but one side of the coin; on the other is the benefit the state derives from allowing private audiences to attend its executions. Through such executions, the state can threaten its people at the same time as it reassures them. To the audience (which in turn informs the populace), the state delivers two different guarantees by the same sentence: “if you commit a capital offense, this is what will happen to you.” The people are at once forewarned of the punishment that awaits as well as reassured of the fair and legitimate process in which it will be administered (that fairness and legitimacy having been granted to the process by none other than the people themselves as assenting audience members to it).

The above explains why, if a state desires to conduct executions, it would prefer to do so before a private audience. But the state does not select the members of this small audience at random; what remains is to determine why the state chooses the audience members it does and what functions those members serve. By far the most important witnesses in terms of overall utility to the state are the family members of the victims of the condemned. In their response to the execution, these observers can be placed into three categories—those who, post-execution, find the state’s punishment to be too much; those who consider it to be too little; and those who think it just right.

In the first case, family members might find the execution to be too severe and consequently refuse to sanction the state's performance of it. This reaction undermines the process and therefore must be dealt with by the state, which adapts or abandons its method of killing. Just as outcries from public audiences in part contributed to the state’s decision to switch to private audiences, the disapproval of private audience members has contributed to the evolution in execution techniques (i.e., progression from noose to chair to chamber to needle). The state continually adapts until it creates primarily positive reactions, such as those exhibited by audience members in the next two categories. Despite the pride it takes in not having a strong public demand for open executions, the state certainly would not mind even zealous supporters of its capital punishment procedure. If anyone, the survivors of the victims would be the bloodthirsty champions of state-killing (so long as the victim is not Kitty Dukakis). So much so, in fact, that some walk away unsatisfied, echoing critiques that capital punishment can be disproportionately small to the capital crime (e.g., Timothy McVeigh’s boast of “168 to 1”).

In other cases, especially where the victims are few and did not endure tremendous suffering, surviving family members might experience satisfaction or resolution. This result would coincide with the functional analysis of state executions put forth by Rene Girard in Violence and the Sacred. According to Girard, the state employs capital punishment so as to terminate the potentially catastrophic cycle of reciprocal vengeance that would naturally follow the first violent act. But by absorbing private vengeance and transforming it into a legitimized, public form, the state robs the original would-be avenger of a certain satisfaction that would come with personally fulfilling what he considers a fundamental obligation. Even if this desire is purely subconscious, it can be at least partially satiated through the act of witnessing the killing, and vigilantism is avoided—in other words, those who might take the law into their own hands are instead permitted to take it in with their own eyes.

Thus, every state execution witnessed by an assenting private audience is a relegitimization of the state’s process of killing, and the state improves the odds of assent by making the victims’ family members the most important portion of the audience.

  • I think this essay promised more than it delivered. In the end, what was there to say about the selected audience at executions? The authorities invite the politically-necessary constituencies, including the press, and they try to control the image to avoid either provocation or delegitimation. This is neither surprising nor meaningless, and could perhaps generate more insight. But you are not seeking new conceptions, it appears, and are content to stop with predictable reinforcements of concepts oft repeated.


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r5 - 12 Jan 2009 - 23:07:11 - IanSullivan
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