The Ethics of Capital Punishment and a Law of Affective Enchantment
| Author | Sabrina Gilani |
| DOI | http://doi.org/10.1177/09646639221094938 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
The Ethics of Capital
Punishment and a Law
of Affective Enchantment
Sabrina Gilani
University of Sussex, Sussex Law School, UK
Abstract
This paper re-reads American Appellate and Supreme Court rulings about the constitu-
tionality of execution by electrocution from the perspective of new materialism. Using
the case of Provenzano v. Moore, this paper highlights how the existing jurisprudence
develops a notion of cruelty that deliberately avoids the sensual and affective dimensions
of punishment. Given the profoundly corporeal nature of punishment and even more so
capital punishment, any consideration of the ethics of punitive practice must meaning-
fully engage with the body, its situatedness, and its material networks, all of which
enact punishment as a social phenomenon. Employing Jane Bennett’s ethics of affective
enchantment, grounded in the ethico-onto-epistemology of new materialist thinkers,
this paper critiques the majority opinion in Provenzano by demonstrating how it feeds
into modern disenchantment. It then draws on Provenzano’slandmark dissent to show
how ethical practice stems from deliberately opening oneself up to the wonderment
of an entangled world produced through the acknowledgement of nonhuman selves
and plastic bodies. This has the potential to generate an understanding of ‘humane’pun-
ishment that better, and more meaningfully accounts for how human beings relate to and
engage with the world around them.
Keywords
affectivity, affective punishment, capital punishment, intra-activity, modern disenchantment,
new materialism, onto-epistemology, vibrant matter
Corresponding author:
Sabrina Gilani, University of Sussex, Sussex Law School, Brighton, East Sussex BN1 9QE, UK.
Email: s.gilani@sussex.ac.uk
Article
Social & Legal Studies
2023, Vol. 32(1) 3–27
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09646639221094938
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Introduction
The death penalty in the United States has been under attack for decades now.
Throughout its history, state governments have adopted varying modes of execution, jus-
tifying each on the basis that it provided a more civilised and humane method of putting
inmates to death (Sarat, 2016). At the end of the nineteenth century, execution by hanging
was replaced with the electric chair, making the United States the first and only country in
the world to electrocute prisoners. Though several American states have declared electro-
cution unconstitutional, many others have stymied constitutional challenges either by
eliminating electrocution as the sole or primary mode of state punishment, or by
altogether replacing it with lethal injection. In states that have not yet declared electrocu-
tion unconstitutional under the Eighth Amendment, the threat of drug shortages and a
general loss of confidence in the lethal injection protocols has made it so that the electric
chair is threatening a comeback (Barnes, 2018). In fact, under the Trump administration,
plans were underway to revive both the electric chair and gas chamber in these states
(Fuchs, 2020). It is timely, then, to consider the ethical implications of execution by elec-
trocution and, perhaps, to draw some insights from these debates to speak about the ethics
of capital punishment more broadly.
This paper advances a new materialist critique of capital punishment. Its arguments are
grounded in the view that the death penalty attracts criticism, at least partly, because exist-
ing legal accountswhich consider the cruelty of state-instituted death, deny, denigrate, and
minimise the sensual and affective dimensions of punishment. Many rights advocates and
criminologists have written about this neglect in terms of the condemned inmate’s experi-
ences (Harrisonand Tamony, 2010; Johnson,1979, 2016; Vogelman, 1989),but apart from
studies about its deterrent effects (Abernethy, 1995; Zimmerman, 2006), very little aca-
demic attention has been paid to the affective qualities of capital punishment as it relates
to the wider public. How punitive processes engage the bodies of those who bear
witness to its practice has relevance for whether the death penalty is seen as a legitimate
exercise of legal power. And, for this reason, death penalty abolitionists and advocates
alike, report feeling alienated by legal decision-making that does not account for sensual
experience (Baniel-Stark, 2014; Lynch, 2000).
1
According to Max Weber, these feelings of politico-legal estrangement are symptom-
atic of a modern world, in which empirical knowledge and understanding are treated as
distinct and superior to ideals, values, and beliefs. Modernity, he opines, brings about a
state of human disaffection (Weber, 1919). In the kind of calculable world theorised by
modernism, a world divested of mystery or ‘magic’(Entzauberung), there is an expect-
ation that scientific reasoning and empirical knowledge is capable of explaining nature’s
workings; that nature or the physical world is stable and, for this reason, provides us with
the necessary grounding for ethical decision-making. Questions about how we should act
become dependent on what science reveals to us about how the world operates. Modernist
empiricism lends itself to an understanding of the body that is simultaneously neutral and
selfish. The body is seen as a neutral tool for acquiring knowledge about the world in
which it is embedded (i.e. sensory knowledge), but its ability to assess and use that
knowledge is always treated as partial and self-interested (i.e. perceptual knowledge).
In a modern world, when science fails us, when the material world we are told is
4Social & Legal Studies 32(1)
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