Some comments from an anonymous reader have made me realize that my project in the last few blog posts may be misconstrued, and since I plan to continue this series of posts, I want to clarify the philosophical and political motivations behind the project.
First, I do not intend to weigh in on “the debate” about capital punishment. Rather, I wish to put in question the whole framework of death penalty discourse in the US, which has been structured as a debate between two sides, pro and con, since at least Furman v Georgia (1972). The content of these debates tends to be moral rather than political: Is it right or wrong, in principle, for a state to execute one of its citizens? What are the utilitarian, deontological, and other standard arguments for or against the death penalty? Do you agree or disagree?
This discourse is impoverished for two main reasons: 1) It neglects the social, historical, and political context within which executions actually happen, and 2) The debate can go on interminably without ever having to address or listen to those who are condemned to death.
These may seem like extrinsic factors to the debate – and they are. This is why the debate is insufficient. But philosophy is not just a debating club. There are good philosophical reasons to insist on the importance of engaging with the concrete situation of executions and the voices of the condemned. I will focus on the latter, since it is my project in these posts to make some of the voices of the condemned audible beyond the prison walls.
Why listen to the condemned? What could convicted murderers add to the discussion of capital punishment that trained philosophers have not already run circles around? What the condemned bring to the conversation may or may not yield new content to feed into the debating machine. That is not the point! What they bring is the singularity of their existence and the particularity of their situation. What do I mean by this?
First, singularity. Levinas distinguishes between the saying and the said. The said refers to most of what we mean by language: the content and form of speech, the repeatable series of words with a particular range of denotations and connotations. The saying is something different. It is the to-the-other of the address, the vocative dimension of speaking to someone, in distinction from the “said” of what is spoken. The saying cannot be put into words without turning it into a said; but this does not mean that the saying is something mystical or ineffable. It is as common and everyday as “Hey you!” or “What are you looking at?” Every said launches forth as a saying, even these words I am typing without the presence of a visible interlocutor. The saying is the site of ethical relation for Levinas, which does not mean that it is always warm and fuzzy. It can be painful and even traumatic to be addressed by someone. “Your money or your life!” involves a saying. So does “it is the order of this Court that you suffer death, said penalty to be inflicted within the walls of San Quentin.”
Part of my point – but not all of it – is that, to the extent that our discussion of the death penalty characteristically excludes or ignores the singular faces of those who are condemned to death, it is fundamentally unethical. We could list a million reasons pro and con, we could apply Mill and Kant masterfully, we could decide among ourselves upon a perfect solution – but to the extent that we build this “we” without even engaging with the condemned, we have in effect already murdered them. This is dramatic language, I know. Not everyone will agree with me. But think about it. For a detailed Levinasian argument against the death penalty, see Benjamin Yost's "Responsibility and Revision: A Levinasian Argument Against Capital Punishment."
Secondly, the condemned bring the particularity of their situation to the discussion of capital punishment. This particularity includes, but is not limited to, poverty, racism, street violence, sexual, physical and emotional abuse. It is easy to imagine the inmate on death row as an evil, sadistic, sociopathic killer; this is almost the only public image we have for them. But there are plenty of murderers who are not on death row and, while I don't want to fetishize innocence, there are plenty of people on death row who are not murderers. The concept of felony murder makes it possible for someone who is convicted of participation in a felony - say, armed robbery - could get the death penalty if someone else involved in the crime kills someone. Current plea bargaining practices can result in a situation where the person who pulled the trigger gets 25 years, while the person who drove the van gets a death sentence.
While it is possible to learn about these things without ever engaging in conversation with someone who is condemned to death, the absence of inmates as interlocutors tends to produce a situation in which most people on the outside have little motivation to test the limits of their own awareness of the legal system, even if they are vaguely uncomfortable with the fact that their state is killing people in the name of justice and public safety.
I will close with a passage from David Garland's excellent book, Peculiar Institution: America's Death Penalty in an Age of Abolition.
"The man you wanted to kill was the abusive robber, high on crack, who pistol-whipped and shot two customers at a Seven-Eleven store in 1984. Instead, in 1990, the state electrocutes a balding, religious, model prisoner in a neat blue-demin uniform" (47-8, citing Samuel Gross, "The Romance of Revenge: Capital Punishment in America").