Arguments supporting the death penalty revolve around two axes: deterrence and retribution. While deterrence appeals to the logic of straightforward instrumentality, promising reduced homicide rates, retribution appeals to the logic of the imagination. Since the argument for deterrence persists in spite of the absence of any credible evidence for the death penalty's deterrent effect, and since the wish for retribution so directly depends upon fantasy, both arguments warrant psychoanalytic scrutiny.
The deterrence argument bets on reason's capacity to override impulse. The argument's efficacy takes for granted an unbroken link binding plan, deed, arrest, prosecution, conviction, sentencing, and execution. Deterrence arguments further assume that would-be murderers identify with executed persons and try to avoid their fate. Execution thereby becomes prevention. The validity of this conclusion, in turn, presupposes straightforward relations linking message sent to message received, pleasure promised to pleasure sought, pain threatened to pain averted.
No evidence supports these assumptions. Execution does not deter homicides. Perhaps the most systematic contemporary account of the evidence regarding the claims of deterrence theory is Bailey and Peterson's 1997 “Murder, Capital Punishment, and Deterrence: A Review of the Literature.” They conclude:
Thus, it appears that neither economists nor sociologists, nor persons from any other discipline (law, psychology, engineering, etc.) have produced credible evidence of a significant deterrent effect for capital punishment. And not a single investigation to date has produced any indication that capital punishment deters capital murders.
The overwhelming lack of evidence for deterrence does not deter adherents of deterrence. As George W. Bush recently said, “I still believe the death penalty saves lives.” Bush's “still” is both exemplary and telltale. In effect, it means “in spite of the evidence.” This “still” dismisses the logic of cause and effect while affirming the foundational status of an alternative logic—a logic in which belief is prior to experience rather than derived from it. This logic expressly defies the claims of reason and is thus immune to the influence of either reason or experience. The logic underlying the enduring appeal of capital punishment's claims of deterrence falls directly within the purview of psychoanalysis.
This is not the context in which to fully examine the dynamic and structural determinants supporting the continuing appeal of capital punishment's claim as a deterrent. However, for orientation and for an initial starting point, we might recall that Freud wrote of this kind of logic, or at least of its structural preconditions, in “Fetishism” and in “The Splitting of the Ego in the Process of Defense” (1938). In each of these texts, Freud considers clinical phenomena in which a perception or idea is simultaneously acknowledged and disavowed, present and absent, influential and ignored. The result is neither synthesis nor contradiction, but rather an oscillating acknowledgement of incompatible elements. By defensive design, this oscillation expressly defies reason and therefore allows for the persistence of fantasy-driven constructions. Like a fetish, then, the argument for deterrence seems to offer a kind of “cover” to an encounter with nakedness, in this case with the excessively naked violence of useless executions.
In 1976, the Supreme Court of the United States sanctioned the retributive use of the death penalty. Pertinent elements of that decision follow.
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve’ then there are sown the seeds of anarchy.“ [Furman v. Georgia, supra, at 308; Stewart, J., concurring.]
In addressing the issue of retribution here, the Supreme Court gives precise voice to the self-enclosed logic that treats the pursuit of retributive satisfaction as both instinctive and ethical. Retribution is permissible as an expression of “moral outrage,” as a hedge against “anarchy,” and as consistent with a notion of the “dignity of men.” It is sanctioned as a direct expression of a drive, a direct expression of conscience, and an indirect protector of the highest values of the social order.
One senses here the thickly intertwined operations of id, ego, and superego. The convergence of these structures, and the corresponding elimination of structural conflict that would limit the pursuit of satisfaction, echoes the situation that Theodor Adorno, writing in 1950 of the unchecked workings of authoritarian justice, referred to as “the superego becomes the spokesman of the id.”
The death penalty, like any legally sanctioned punishment, promises us a legitimate measure of redress and satisfaction. This promise is a direct response to murder's particularly brutal disruption of both our private and public equilibrium. There is an integral relation between the disruptions generated by murder and the complementary promises attached to the death penalty. This relation warrants close psychoanalytic attention.
Deaths from accident and illness mark our presence in an indifferent universe. We make no promises to protect each other from this ineradicable indifference. We have an entirely different relation to intentional deeds. We have promised to protect each other from malignant intention. In the case of murder, we have been unable to fulfill that promise. This coupling of our failure and someone else's realized intentions is particularly problematic. The convicted murderer raises questions in us not only
Donald Moss, M.D., is on the faculty of the New York University Psychoanalytic Institute. He has written a number of articles about systematized forms of hatred and the death penalty, including “Cruel and Unusual Punishment and the Death Penalty,” in the Journal for the Psychoanalysis of Culture and Society, Vol. 6, No. 1. In May 2003, his edited book Hating in the First Person Plural: Psychoanalytic Essays on Racism, Homophobia, Misogyny and Terror, will be published by Other Press.
about his own person, but also—and perhaps even more importantly—about ourselves. While we are overtly asking, “How could he have done it?”, we are also necessarily asking “How could we have let him?” The realization of his intention reads in part as the failure of ours. Spun by an uneasy conscience, this failure easily turns into a mark of our tolerance, complicity, and participation. In such circumstances, the most extreme punishment can seem to offer a credible promise of the most extreme reward: never again.
Although we may have successfully convicted someone of the murder, our lingering sense of having failed the victim can easily lead to a demand to do more. The source of this demand seems to be the dead person herself. With the murderer still alive, the victim “cannot rest in peace.” We have failed her once; this time we will prove our willingness to go all the way.
While deterrence appeals to the logic of straightforward instrumentality, retribution appeals to the logic of the imagination.
Not having done enough to protect the victim, and with the transgressor now in hand, we feel compelled to fulfill our social obligation and to make up for our failures. We are bound to each other affectionately as well as legally. Shared aspirations toward mutual love and mutual identifications underlie any community's commitment to protect each of its members from violence. Murder leaves us wondering whether our love was half-hearted. More precisely, murder leaves us susceptible to an unbearable and insufficiently mediated awareness that our love might have been both limited and mingled with hatred. Inhibited punishments leave us wondering the same. For its proponents, then, execution signifies both the most that can be done and the willingness to do it. When the death penalty, our most extreme punishment, is sanctioned, it offers us a last chance to finally and retroactively prove the extremity, the wholeheartedness, of our love, its absence of limits.
That proof, perhaps, is part of what proponents hope to find in “closure.” But like deterrence, it depends upon reconstructing reality. In this case, the reality to be reconstructed is not directly the reality of object loss. Rather, execution promises to help restore one's shattered belief that love and law, from now on, can and will protect the objects we love from the rogue hatreds that destroyed them.