Vol. 13 No. 3 (March 2003)
FROM NOOSE TO NEEDLE: CAPITAL PUNISHMENT AND THE LATE LIBERAL STATE, by Timothy V. Kaufman-Osborn. Ann Arbor, MI: The University of Michigan Press, 2003. 251 pp. Cloth -- $54.50 ISBN 0-472-11291-0. Paper -- $21.95 ISBN 0-472-08890-4.
Reviewed by John Paul Ryan, The Education, Public Policy, and Marketing Group. johnpryan@mindspring.com
Much of the public and scholarly discourse on capital punishment focuses on questions of fairness. Did the convicted receive adequate representation? Are there racial disparities in the imposition of death sentences? Were innocent men wrongfully convicted? In FROM NOOSE TO NEEDLE: CAPITAL PUNISHMENT AND THE LATE LIBERAL STATE, political scientist Timothy Kaufman-Osborn offers a quite different perspective by using the lens of political theory to explore weaknesses in the state’s arguments about the legitimacy of capital punishment and, indeed, to question the legitimacy of the liberal state that imposes it.
Although formally organized into chapters, the book is actually a series of essays about capital punishment, law, and society that offer a broad historical view of the practices in both the United States and England. By the author’s own acknowledgment, the essays are not highly interrelated, and there is no formal conclusion; an introductory chapter describes the terrain to be covered.
Kaufman-Osborn analyzes the relationship between the announcement of a death sentence by the presiding trial judge and its subsequent imposition by corrections officials in the opening essay, “What is a Death Sentence?” To make the argument that trial judges are ultimately unsuccessful in distancing themselves from the execution of condemned inmates, Kaufman-Osborn draws upon philosopher J. L. Austin’s concept of “performative utterances” and sociologist Pierre Bordieu’s critique of Austin that seeks to account for the social position of the speaker. A death sentence “uttered” by a judge in the courtroom sets in motion a chain of events that leads to executions; in some respects the declaration itself accomplishes (or constitutes) the deed. In Kaufman-Osborn’s view, in order to make evident the force of a sentence, a judge might as well “climb down from the bench, disrobe, and employ his bare hands to do what a noose will accomplish more efficiently …” (p. 36).
Kaufman-Osborn argues that however much the liberal state depends upon a clear separation of powers between the executive and judicial branches, this presumed institutional separation between the imposition and infliction of a death sentence is illusory. Symbolically, the judge is the “agent of death,” no matter how many “responsibility-shifting mechanisms” are in place to distance today’s judge from the execution. In one of the book’s many interesting historical observations, he notes that trial judges in western nations were often required to witness the executions they imposed in the 19th century and, in still earlier times, to inflict the actual sentence.
Verisimilitude is not Kaufman-Osborn’s primary objective. Trial judges play a comparatively small role in the “machinery of death” in capital cases, which is orchestrated primarily by state legislatures, prosecutors, and juries. His arguments also suggest a certain inevitability from sentence to execution, but, in fact, only a small percentage of death row inmates are ever executed; a few are pardoned or exonerated, while many others await the results of a full spectrum of (often-lengthy) legal appeals. Whether the waiting itself—which Kaufman-Osborn likens to “the living death that is terminal illness” (p. 41)—constitutes cruel and unusual punishment is open to debate; death penalty activists and most (but not all) death row inmates appear – by their actions – to prefer a slow process that is penetrable and reversible to one that delivers “certain and swift justice.”
Kaufman-Osborn argues that a gradual change in the culture of hangings in England reflected the efforts of the liberal state to consolidate power and demonstrate centralized control over the local administration of justice and the legitimate use of force. In an essay titled “John Locke’s Noose,” he offers a comprehensive and detailed historical view of the practice of hanging in England, from the 5th century through the middle ages to the mid-19th century. His portrait depicts, sometimes quite graphically, changes in the physical methods and the conduct of hangings. From the often-lively public spectacles in London in the 16th and 17th centuries where the condemned man might address a frequently rowdy crowd, executions became sober and privatized events inside the penitentiary by the mid-19th century.
The historical view and theoretical analyses are framed by a discussion of Foucault and Weber, in particular their differing conceptions of the modern state. While sympathetic to both Foucault’s general critique of state violence and his skepticism of the moral acceptability of these “privatized events,” Kaufman-Osborn also finds Weber’s analysis of bureaucracy to be critically helpful in understanding the rationalization of the administration of justice, including hangings. In particular, he points to the “bureaucratic norms of depersonalized authority, perfected techniques of calculation, the supremacy of specialized knowledges, and the ideal of unfettered instrumental control” (p. 62) that mark the increasing rationality of the liberal state.
There are certainly echoes of Foucault in FROM NOOSE TO NEEDLE. One of Kaufman-Osborn’s primary theses throughout the book is that the state’s “monopolistic control over disposition of the means of legitimate violence” (p. 111) is seriously threatened by an execution marked by pain and physical signs of force on the condemned man. In “The Metaphysics of the Hangman,” he argues that, despite the state’s best efforts, a flawless (pain-free) execution by hanging is not possible. As evidence, he analyzes a 574-page transcript of a federal district court hearing in Seattle (CAMPBELL v. BLODGETT), in which the condemned man challenged the constitutionality of execution by hanging. What follows is a critique of a hanging in the state of Washington earlier that year (the first in the U.S. in nearly thirty years). Kaufman-Osborn analyzes the record of the hearing, focusing on the likely proximate cause of death and the likelihood of pain suffered by the condemned man, drawing upon official proclamations of doctors, witness accounts, and the results of an autopsy. What makes Kaufman-Osborn irate is the state’s refusal to acknowledge that hanging is a painful, indeed barbaric method of execution. He spends considerable energy and space critiquing the state of Washington’s efforts to “perfect” the hanging, referencing, among other things, a mathematical formula—initially developed in the late 19th century in England to make hangings more humane—that correlates a man’s weight with the length of the drop (from the platform to the end of the rope).
Here, it seems that Kaufman-Osborn loses sight of the distinctions between “cruel and unusual punishment” and a pain-free execution. With the concept of pain at the center of his attention (also illustrated in a later essay; see below), he offers little in the way of a careful, nuanced analysis of the constitutional standard of “cruel and unusual punishment.” Are all executions “cruel and unusual?” Only those that are “bungled”? Only hangings? His is not a legal analysis but, rather, one driven by political theory. Unlike the historically-rich chapter on English hangings, this essay wanders too unevenly between Nietzsche (the source of the essay’s title) and judicial discussions of the Washington hanging. By the end, the reader is almost left to wonder whether it is only state hangings and the admittedly spurious justifications the state of Washington offered for its use of the noose that ultimately trouble this author. At the same time, one comes to understand that Kaufman-Osborn also sees little improvement in the so-called more humane methods of executions. As an opponent of capital punishment, he trivializes efforts of the modern state to reduce the pain of executions by moving to a private and medically-driven lethal injection method (interestingly, a number of death penalty countries in Asia, Africa, and the Caribbean continue to use hangings, a point that Kaufman-Osborn does not discuss).
Drawing upon Robert Cover’s work on state violence, Kaufman-Osborn offers a wide-ranging discussion of the psychology and physiology of pain both in the abstract and in the context of a 1999 Florida execution in “Silencing the Voice of Pain.” He concludes, “In short, from the law’s standpoint, one of the unanticipated virtues of electrocution … much like the anesthesia that renders unconscious those sentenced to die by lethal injection, may be its ability to suppress the behavioral evidence that might otherwise cause us to fret about a body in pain” (p. 155). Here, Kaufman-Osborn uses the lens of pain to again chide the state for not owning up to what executions are all about: killing–more specifically, state violence that is no more justified than the killings by individuals. However, the Florida case he discusses at length was a “bungled” execution in the sense that the condemned man showed visible signs of pain (blood, facial grimaces, etc.) during the execution.
Indeed, such examples have led many of the U.S. states to move not only from the “noose to the needle,” but also from the electric chair to the needle. Kaufman-Osborn misses the opportunity to explain an important theoretical point that he raises only in passing in this essay—that is the evolution from seeing “a palpable body in pain, once an indispensable means of substantiating the state’s claim to authority, now threatens to delegitimate that same claim” (p. 163). How and why did such an enormous change in the liberal state’s perspective about the meaning of executions come about? He provides hints at answers in his earlier essay on the changing culture of executions in England and revisits the issue theoretically in the final essay, but he offers no comparable historically-grounded discussion within the context of the United States.
In an eloquent and tightly-argued final essay, “Needling the Sovereign,” Kaufman-Osborn identifies and discusses the paradox that capital punishment provides for the liberal state. On the one hand, the liberal state feels driven to make executions more humane, to remove itself from the barbaric executions of times past. However, when executions become fully private, sanitized, indeed “uneventful” (here, he draws upon the recent work of law and society scholar Mona Lynch), the liberal state loses yet another opportunity to fully assert its sovereign power—to reclaim the moral meanings (and deterrent value) of public executions that were so much in evidence in 17th century England. At a time when the state finds its power and authority trimmed by the phenomena of globalization, international cooperation and the like, Kaufman-Osborn argues that capital punishment provides no solace, because it requires the liberal state to abandon acknowledgment of the full measure of its ultimate punishment.
This is an intellectually ambitious book that seeks to integrate political theory, legal theory, and a controversial public policy. Kaufman-Osborn displays a broad understanding of political theory and a close reading of lesser-known Supreme Court cases and lower court rulings. The resultant mix is sometimes very good (as in his historically-driven essay on English hangings and in his final essay) but other times much less satisfying (as in the “Metaphysics of the Hangman” and in a short, weak essay on gender and capital punishment that under-utilizes feminist theory and writings). There is no linear progression of topics or argument, although Kaufman-Osborn makes some effort, particularly in the final essay, to integrate arguments and ideas. Yet there is also considerable overlap and repetition of key themes about the liberal state, its power, and its legitimacy.
Ultimately, political theorists and law and society scholars are probably more likely to find Kaufman-Osborn’s book of interest than those political scientists, sociologists, or legal scholars whose focus is on the policy or constitutional dimensions of capital punishment. For a variety of reasons, FROM NOOSE TO NEEDLE is unlikely to win a large audience or transform contemporary thinking and discourse about the desirability, efficacy, or morality of capital punishment. Nevertheless, Kaufman-Osborn reminds us that both political philosophy and history can ably contribute to a broader understanding of contemporary public policy issues.
CASE REFERENCES
CAMPBELL v. BLODGETT, W.D. Wash., 1993.
*********************************************************************
Copyright 2003 by the author, John Paul Ryan.