WHO DESERVES TO DIE: CONSTRUCTING THE EXECUTABLE SUBJECT, by Austin Sarat and Karl Shoemaker (eds). Amherst and Boston: University of Massachusetts Press, 2011. 320pp. Paper $28.95. ISBN 9781558498839.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. matwell [at] radford.edu.


Who deserves to die? Why can some persons be selected for death at the hands of the state? Who is defined as death-eligible by law and culture? Given the complex death penalty regime in the United States and the contested legitimacy of capital punishment, these questions are wide open and provide a fertile field for exploration in the ten chapters included in the volume edited by Austin Sarat and Karl Shoemaker. One approach for identifying the executable subject is to trace recent Supreme Court decisions that have eliminated certain categories of defendants from execution. In Atkins v. Virginia (2002), the Court ruled that people suffering from mental retardation could not be subject to capital punishment. In 2005, they extended a similar logic in ruling that the execution of juveniles was unconstitutional in Roper v. Simmons. And, the Court held that child rapists who did not murder their victims were ineligible for the death penalty in Kennedy v. Louisiana (2008). A 2007 decision, Panetti v. Quarterman which elaborated on the circumstances determining death-eligibility of a person who became mentally ill after sentencing, provided a focal point for this collection. As the introduction indicates, the ruling in Panetti provides a version of who the executable subject must be (someone who understands the gravity of his offense and its relationship to his punishment). Likewise, his awareness of his crime and punishment should provide the community with reassurance that he and they share the meaning of his death. The editors call such an understanding “communicative retribution” and argue that after Panetti such retribution constitutes an altered definition of the justification for capital punishment. The contributors to this volume include law professors, political scientists, professors of English, sociology, and history. Some articles advance legal or cultural arguments, others involve postmodernist analysis. All are scholarly and thought-provoking. As with any collection, individual readers will find some articles more relevant to their interests.

The first section of the book involves definitions of the executable subject drawing on the perspectives of law, psychology, and literature. Karl Shoemaker offers the deepest analysis of Panetti in his chapter, “The Medieval Origins of the Supreme Court’s Prohibition on Executing the Insane.” He examines earlier decisions, notably Ford v. Wainwright (1986) in which the Court relied heavily on historical attitudes toward punishing the incompetent and determined that putting an insane person to death was unconstitutional. Ford, along with several subsequent Federal Circuit Court decisions, did not really resolve this [*71] question of why a person must be sane to be eligible for execution. In Panetti, the Court asked whether it is permissible to execute a person who, because of mental illness, does not understand that his death is intended to be the punishment for a crime (Panetti believed he would be killed, not for murder, but because the state wanted to prevent him from preaching). The Supreme Court ruled that to be death-eligible, an inmate must not only realize why he is being punished, but by this recognition, he in effect assents to the justice of the punishment. The community recognizes his acceptance and the need for retribution is satisfied. Although, Shoemaker argues, historical traditions have long held that only the cognizant were fit subjects for execution, the rationale in Panettiwas new in its insistence on a “vindictive exchange” between the prisoner and the community. Unless the offender was able to understand the reason for his death, the hypothetical community would be shortchanged in its need for retribution.

Robert Weisberg addresses the legal implications of psychopathology, the definition of the person who is a “death penalty prototype.” Psychopathology or antisocial personality (ASP), identified with reckless indifference to human life, while a mental illness defined by the American Psychiatric Association, frequently becomes a tool of the prosecution seeking the death penalty, rather than a defense. Furthermore, some argue that neuroscience shows observable differences in the brains of those with ASP compared to others’ brains. If that is the case, how do the moral judgments inherent in death penalty jurisprudence apply? And what of the concept of moral luck – the set of traits one possesses beyond his own volition? How does that notion apply to the definition of the executable subject? Finally how does being a “psychopath” justify or call into question one’s responsibility for a crime? Does it make him more or less a fit subject for execution? Weisberg poses the questions eloquently. He recognizes that juries in capital cases come up with answers. He does not provide them.

“Waiving from Death Row” by Susan R. Schmeiser discusses the issue of “volunteers,” those condemned to death who forego their appeals to hasten their own execution. As Schmeiser points out, when a prisoner consents to his own death and collaborates in his own execution, it challenges the primacy of the law as an agent of punishment. His act of free will subverts the state’s control. When an inmate takes control of the process is he forcing the state to collude in his suicide? How can the authorities be sure that he is competent (and therefore executable) if he refuses to play by the rules that require him to exhaust his appeals? As Schmeiser argues, much depends on the prisoner’s rationale for abandoning the appellate process. Typically, to be judged competent, he or she must acknowledge acceptance of the state’s legitimacy in putting him to death, but the ambiguity of his choice remains. In my work on executed women, I noted that three of the twelve women executed in the modern period waived their appeals. Their reasons differed. Christina Riggs had attempted suicide at the same time she killed her children. She could not wait for the state to execute her so she could be reunited with them. Arkansas obliged. Lynda Lyon, a libertarian [*72] extremist denied that the state of Alabama had the authority to try and convict her. She declined to cooperate in any further litigation which she deemed illegitimate. And Aileen Wuornos, whose mental health was in doubt from the beginning and who claimed that her prison conditions were inhumane, abandoned her appeals and asked that Florida expedite her execution. The cases are quite different from one another (as are the cases Schmeiser cites) but they all raise the issue of who ultimately has his or her hand on the controls when the lethal injection occurs.

The fourth chapter “No Remorse,” addresses a theme of many accounts of death sentences. Did the subject show remorse? If he expresses regret how is a court to determine its authenticity? And what effect does its authenticity or lack thereof have on defining whether one is executable? Ravit Reichman acknowledging that remorse “enter[s] the public sphere of law as pure performance,” (p.115, emphasis in original) turns to literature, specifically to James Joyce, to offer illustrative examples. He concludes that the very impossibility of determining the authenticity of remorse may undermine its role in the judicial process.

The next three chapters focus on rituals of execution: how the notion of sacrifice relates to the use of capital punishment; the significance of last words and last meals. Mateo Taussig-Rubbo questions how two kinds of state-inflicted death, sacrifice and the death penalty, compare and contrast. He argues that in some cases, the unofficial version of an execution identifies it as a sacrifice. In some particularly high profile cases, there may be a fear that by executing someone defined as heroic by his supporters, the state may be creating a martyr. Taussig-Rubbo considers whether the ritual surrounding capital punishment makes it more like a sacrifice or more of a bureaucratic event. He ultimately concludes his inquiry with a nod to Agamben’s notion that the contemporary moment is dominated by homo sacer, one who can be killed without committing a homicide but who cannot be sacrificed. Taussig-Robbo maintains that the executable subject in the United States fits the definition of homo sacer, one whose death is neither homicide nor sacrifice.

The chapters by Vanessa Barker and Linda Ross Meyer are companion pieces, each offering an analysis of the last words spoken before execution. Meyer incorporates a discussion of inmates’ last meals as further insight into the ritual of the death penalty. Contemporary executions no longer include the elaborate public statements attributed to the condemned up through the nineteenth century. But with the today’s private executions deep inside prisons, last words may offer insight into the mind of the executable subject and into the limits of the state’s power, even as it moves to extinguish a life. Barker has used published sources from Texas and Georgia to identify and categorize dying statements that fall into several scripts. Some ask for forgiveness from the victims’ family, asserting that the condemned person takes responsibility and, usually, hopes for salvation. Other scripts assert the inmate’s innocence and claim victimization at the hands of the criminal justice system and perhaps at the hands of the society as a whole. Barker claims that, given retribution as [*73] the current dominant justification for capital punishment, a statement of contrition by the condemned that asserts his fundamental human dignity challenges the state-endorsed meaning of the death. She quotes the last words, “I am a human being also” (p.164).

Barker does not quote last words that convey mental illness on the part of the condemned person, but surely there are many such examples. One thinks of the statement of Aileen Wuornos who referred to “sailing with the rock” and coming back “like Independence Day with Jesus, June 6.” The executable subject whose last words are completely out of touch with reality seems to truly call into question the legitimacy of the punishment.

Linda Ross Meyer looks at both last words and last meals. She points out that the ritual of the last meal may be “deeply ironic.” Given the tradition of meals as symbols of community and friendship and the religious symbolism of the Last Supper, a condemned person’s last meal may seem to stand in blatant contradiction to what is about to happen. The state feeds him and then kills him. It is no wonder that many inmates refuse to order a last meal or find themselves unable to eat it. Meyer raises an interesting point, however, in arguing that the audience for how the condemned person conducts himself in the last hours including the ritual of the last meal is not just his own family or the official witnesses but also his fellow inmates. How he meets his death may be of special meaning to them.

In September 2011 Texas stopped offering last meals to those about to be executed. Legislators complained about the expense, especially if the inmate did not consume all he had ordered. But also, in a strong statement of retributive justice, they stated that the victim was not given a last meal so how could the murderer expect special treatment? Thus the irony and symbolism of the final meal would no longer be an issue. The executable subject would be left with only the choice of eating or refusing the regular prison fare.

Dan Markel’s chapter, "Executing Retributivism: Panetti and the Future of the Eighth Amendment" seems the most comprehensive and inclusive selection. Markel claims that Panetti provides a new death penalty jurisprudence, one that might refashion thinking about punishment. His argument is that the Court has defined the retributive purpose of capital punishment as having two elements: the community should be satisfied that the executed person is truly culpable and deserving of death and the offender should recognize the gravity of his crime. The key to his argument is the question of how the death penalty in particular causes the defendant to recognize that gravity. That will not happen if he has already repented. And, Markel raises the question that seriously undermines the Court’s argument, how can the state know that the condemned person has internalized the message of the punishment if he or she has no chance to demonstrate that? In other words, dead people cannot live reformed lives to show that they have responded appropriately to being killed by the state. Thus, Markel maintains, if the death penalty cannot perform the communicative task that the Court has defined as a major function, perhaps Panetti has forced their hand to revisit [*74] both capital punishment and other “wild excesses” in the criminal justice system.

The last two chapters in Who Deserves to Die are the most theoretical in the collection. Ruth Miller writes about “therapeutic death,” arguing that the Court’s definition of death-competent and death-incompetent subjects emphasizes the therapeutic potential of the death penalty. They are, in other words, deciding who can benefit from the “treatment” of capital punishment. In making her claim, Miller analyzes Ford v. Wainwright and Panetti, as well as an Eighth Circuit case, Singleton v. Norris which dealt with medicating a prisoner to make him competent enough to be executed. I am not at all sure that I follow her argument, but I believe she maintains that the courts have demanded that the executable subject must be self-aware, and that in doing so it makes human life the prerequisite for death. The sovereign (the state) in Singleton inflicted life in order to inflict death. However, I fear that it is quite possible I completely misunderstood Miller’s chapter as I concluded that it was either brilliant or impenetrable.

The final chapter by Thomas Dumm addresses what he refers to as some limits to our sympathetic imagination with respect to executable subjects and the experience of death at the hands of the state. He begins with the liberal theory of justice which would hold that an executable subject is one who acted in violation of a law that carried the penalty of death and whose guilt was fairly adjudicated. He argues, however, that such an approach “deflects” one from confronting the difficulty of reality. Instead he advocates a “philosophy of the ordinary” if we hope to be able to confront and conceptualize the experience of those subjects. Referring to the work of Adam Smith, Stanley Cavell, Cora Diamond and J. M. Coetzee, Dumm wrestles with the problem of our inability to really imagine death yet the necessity of making the effort.

Dumm’s chapter is rich in provocative ideas and serves as a fitting – and haunting – conclusion to this extraordinary collection. Many of the chapters challenge the reader, intellectually as well as morally. Most deserve several readings to digest fully their multi-layered arguments.

Atkins v. Virginia, 536 U.S. 301, (2002).
Ford v. Wainwright, 477 U.S. 399 (1986).
Kennedy v. Louisiana, NO. 07-343 (2008).
Panetti v. Quarterman, 551 U.S. 930 (2007).
Roper v. Simmons, 543 U.S. 551 (2005).
Singleton v. Norris, 319 F. 3d 1018 (8th Cir.2003).

Copyright by the author, Mary W. Atwell.