Sites of Crossing and Death in Punishment: The Parallel Lives, Trade‐offs and Equivalencies of the Death Penalty and Life without Parole in the US
| DOI | http://doi.org/10.1111/hojo.12174 |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
The Howard Journal Vol55 No 3. September 2016 DOI: 10.1111/hojo.12174
ISSN 2059-1098, pp. 345–361
Sites of Crossing and Death
in Punishment: The Parallel Lives,
Trade-offs and Equivalencies of the
Death Penalty and Life without Parole
in the US
EVI GIRLING
Senior Lecturer in Criminology, School of Social Science and Public Policy,
Keele University
Abstract: This article explores continuities and discontinuities between two kinds of
death in punishment: of death as punishment and of death as the specified detritus of
punishment, life without parole (LWOP). It traces the parallel lives and equivalencies
between life and death in penal policy and practice in the US, and attendant narratives of
harshness/mildness, and compromises and covenants with pasts and futures.The discourse
of death that has sustained the survival of the death penalty in the US has found a home
in LWOP. It argues that spectacles and memorialisations of injustice, error and pain
circumscribed in the judicial and popular discourse of death as different provide spaces
for reflection on dignity and cruelty, spaces in which the loss of life and liberty can be
grieved, a subversive politics of mourning (Butler 2004) for those whom punishment had
deemed dispensable. As the death penalty is exchanged for LWOP, reform strategies need
to reimagine and recapture these spaces for grieving, and understanding the death work
of LWOP in US penal politics is crucial to this endeavour.
Keywords: death penalty; life without parole (LWOP); abolitionist politics;
penal sensibilities
This article explores political and cultural sites of crossing in the US be-
tween two variants of death in punishment – of death as punishment and
of death as the specified and sought-for detritus of punishment – life with-
out parole (LWOP). To paraphrase Strauss (1966): ‘Death is good to think
punishment with’ – in law, administration, witnessing or experiencing the
unnatural state of death in censure and captivity. The death penalty in
the US has been explored, mapped out, and contested, as a ‘peculiar’ in-
stitution; a case of historical, penal and symbolic exceptionalism (Garland
2010; Zimring 2003), and scholars have sought to explore the parameters
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2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol55 No 3. September 2016
ISSN 2059-1098, pp. 345–361
and contingencies of exceptionalism in historical and geographical terms
(Whitman 2003; Garland 2002, 2010; Girling 2006; Sarat and Martchukat
2011; Zimring 2003). Reflections on death in the discourse and grammar
of punishment remain an important and timely project for academics and
penal reformers. This article explores the mythology of death in punish-
ment and its place in two particular versions of life and death exchanges in
the name of punishment in the US. The study of the ‘cultural life’ of capital
punishment (Sarat and Boulanger 2005; Girling 2011; Seal 2014) is very
much premised on the witnessing of its judicial, political, administrative,
and medicalised rituals (Sarat 2001b; Lynch 2000; Girling 2004; Kaufman-
Osborn 2002). Yet such witnessing is absent in the attendant practices of
LWOP and the very condition of invisibility or ‘thoughtlessness’ (Berry
2015) is built into the history of emergence and grammar of LWOP as
an alternative to a death sentence. This article explores possibilities and
impasses of witnessing (seeing and seeing through) a new scene of death
in punishment in the context of the political and cultural condition of in-
visibility of death in ordinary, banal, normalised carceral punishment, for
the worst of the worst.
The global demise of the death penalty has been well documented
(Hood and Hoyle 2014), yet the life of death in punishment is anything but
over; the diminishing number of death sentences and executions in the US
belies the fact that a sentence of ‘death in punishment’ (LWOP)is now an in-
creasingly prominent feature of American criminal justice. The narrowing
of the scope and scale of the application of the death penalty in the day-to-
day repertoire of criminal justice in the US (Zimring 2003; Garland 2010)
has exchanged death through execution to death as an exit from penal
institutions. That one becomes the conduit of another is not contested –
in the US, LWOP becomes an exit from death row as a policy trade-off
(moratoria, state abolition of the death penalty, a compromise condition
for extradition from abolitionist jurisdictions such as the European Union)
and in terms of individual lives (plea bargaining, commutations from death
row).
Narratives of the historical transformation of executions begin with the
spectacle of the physical annihilation of the body (Foucault 1977) and seem
to end with lethal injection, a private, ‘painless’ medicalised (Denno 2007),
uneventful, ‘assisted’ crossing between life and death (Kaufman-Osborn
2002; Sarat 2001a; Denno 2007; Lynch 2000). There are emerging nar-
ratives reflecting on continuities with another scene of death in punish-
ment (Gottschalk 2014; Ogletree and Sarat 2012; Adelsberg, Guenther and
Zeman 2015), that of LWOP as a replacement for execution, where death
is the expected, yet uninvited, guest at the scene of punishment. That
attention must be shifted onto LWOP is a case that has been eloquently
made (Gottschalk 2012, 2014; Adelsberg, Guenther and Zeman 2015; Dilts
2015). Yet the death penalty’s agility to survive challenges and adapt has
enshrined it as both the ‘masthead symbol’ of penal harshness and ‘risk-
averse retributivism’ (Garland 2010, p.244) and as the focus of abolitionist
and reform strategies. By contrast, there is a comparatively deafening si-
lence on the other lives of death in punishment and the challenge remains
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2016 The Howard League and John Wiley & Sons Ltd
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