A critique of contemporary death penalty abolitionism
| Date | 01 July 2006 |
| Published date | 01 July 2006 |
| DOI | 10.1177/1462474506064702 |
| Author | Timothy V. Kaufman-Osborn |
| Subject Matter | Articles |
A critique of
contemporary death
penalty abolitionism
TIMOTHY V. KAUFMAN-OSBORN
Whitman College, USA
Abstract
This essay seeks to show what is occluded by contemporary arguments in favor of abol-
ishing the death penalty in the United States. Following an exposition of the arguments
advanced by the National Coalition to Abolish the Death Penalty and the American
Civil Liberties Union, as well as those advanced by Hugo Bedau and Austin Sarat, the
essay interrogates a pair of presuppositions that are implicit in all. Specifically, the essay
first poses questions regarding the contention that death as a punishment is qualita-
tively different from all others. That contention abstracts capital punishment from the
complex of contemporary political forces whose conjuncture goes a long way toward
explaining the persistence of the death penalty in the United States. Second, the essay
argues that familiar critiques of capital punishment presuppose a specific vision of the
state and the form of sovereignty that allegedly defines that state. This vision is anachro-
nistic in so far as it fails to grasp recent transformations in the character of state power
in the United States. To fail to acknowledge these transformations is to run the risk of
reinforcing the very conception of state sovereignty that now warrants the death penalty
as a legitimate form of punishment.
Key Words
abolitionism • death penalty • lethal injection • liberal state • sovereignty
I. INTRODUCTION
This essay explores certain limitations of contemporary arguments in favor of abolish-
ing the death penalty in the United States. I am committed to the goal of abolition,
and the argument advanced here implies a possible strategic reorientation of campaigns
to bring capital punishment to an end. Specification of the terms of such a reorienta-
tion, however, is not my principal aim; nor is it to offer a new argument in favor of
abolition. Instead, my aim is to show what is occluded by some of the more familiar
ways in which these arguments are framed.
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& SOCIETY
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1462-4745; Vol 8(3): 365–383
DOI: 10.1177/1462474506064702
To do so, following an exposition of the arguments advanced by two abolitionist
organizations, as well as those advanced by two scholars of capital punishment, I
question a pair of presuppositions, which, I contend, are implicit in all. Although each
is elaborated more carefully later, both can be introduced by citing one of the US
Supreme Court’s more ardent abolitionists, Justice William Brennan, who, in his
concurring opinion in Furman v. Georgia, declared that capital punishment, unlike all
other forms of punishment, is
unusual in its pain, in its finality, and in its enormity . .. Death is truly an awesome punish-
ment. The calculated killing of a human being by the State involves, by its very nature, a denial
of the executed person’s humanity. (1972: 287, 289–90)
Implicit in this claim is the conviction that death is a unique punishment, one that
must be considered sui generis in virtue of its irrevocability. Less immediately apparent
but also implicit in this quotation is a vision of the liberal state as the exclusive monop-
olist over the means of legitimate violence; to no other institution or agent do we cede
the authority to punish by putting to death. Sovereignty is the term by which this
authority is known, and law is the vehicle of its articulation.
My aim in this essay is, first, to question the presupposition that death is a punish-
ment that is qualitatively different from all others. This presupposition abstracts
consideration of capital punishment from the contemporary political forces whose inter-
play goes a long way toward explaining not just the persistence of the death penalty in
the United States, but also the ways in which its current administration replicates certain
strategies of formal and informal social control within the political economy of the late
liberal state. My second aim is to suggest that familiar critiques of capital punishment
are anachronistic in so far as they fail to appreciate recent transformations in the char-
acter of state power in the United States, and particularly those suggested by Michel
Foucault’s concept of ‘governmentality’. To fail to acknowledge these transformations,
I argue, is to risk reinforcing the very conception of state sovereignty that now warrants
the death penalty as a legitimate form of punishment.
II. CONTEMPORARY ABOLITIONIST ARGUMENTS
In this section, I examine four cases for abolishing the death penalty. The first and
second, discussed in part A, consist of the arguments advanced by the National Coali-
tion to Abolish the Death Penalty (NCADP) and the American Civil Liberties Union
(ACLU). Together, the websites of these organizations illustrate the sorts of rhetorical
strategies often advanced in an effort to turn public opinion against capital punishment.
The third and fourth, discussed in part B, consist of the briefs advanced by two
frequently cited opponents of the death penalty, Hugo Bedau and Austin Sarat. Albeit
in different ways, each criticizes the arguments advanced by groups like the NCADP
and the ACLU; and each offers a case for abolitionism aimed at moving beyond their
deficiencies. However, as I suggest in the following section, neither adequately ques-
tions the premises shared by these organizations; and so neither provides the ground-
work for a more thoroughgoing reconceptualization of capital punishment and, by
extension, the cause of abolitionism.
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