Cruel and Unusual Punishment and the Death Penalty

This is the second in a series of articles whose aim is to bring psychoanalytic thought to bear on the problem of the death penalty in the United States. The general premise informing this project is that death penalty proponents want something from executions: that murder has taken something away from both the immediately affected people and the community at large and that execution of the guilty party will best redress the loss, best provide an optimal measure of satisfaction. Any pro-death penalty argument asserts that what is wanted from the execution of the convicted person is both achievable and legitimate—that the state, representing the people, has both reason and right on its side when it enacts a death sentence. Given the fact that the United States is alone among advanced industrial nations in not yet abolishing the death penalty, the enactment of death sentences here can be thought of as a local ritual. It is this local ritualistic dimension of the death penalty that puts the lie to any absolute ethical or material claims made by its proponents. Psychoanalysis has had a long history of addressing the determinants of local rituals and I lean on that tradition here.

Before proceeding, I want to summarize the first article in the series. In it, I addressed the two major arguments of death penalty proponents: (1) that execution is a better deterrent than other extreme forms of punishment, like life imprisonment without the possibility of parole, and (2) that execution's retributive dimension is a legitimate social necessity.

Since there is no evidence of the death penalty having a significantly differential deterrent effect, I argued that “its appeal to reason provides execution a rational cover, while its overt defiance of the evidence provides execution a robust, self-sustaining, vehicle for pre-rational action.” The search for retribution (sanctioned by the Supreme Court in 19761) informs this pre-rational action. This search is nested within an appeal for