On the Death Penalty in Multicultural, Multicriminal Managerialism.
(Table for lethal injections: Ken Piorkowski, CC BY-SA 2.0, via Wikimedia Commons)
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What we see on the video of Iryna Zarutska’s murder is hard to bear. And I consider myself one of the more callous contemporaries in that regard. Why this particular murder had an effect that tens of thousands before it did not? Only the gods of the algorithm know. Yet we do know why this murder could have such an impact: because it stands for tens of thousands of others.
Taking a life for a life seems, in the face of such senseless brutality, the only right thing to do. When one then learns that the perpetrator had been arrested 14 times, spent five years in prison for armed robbery, the question inevitably arises whether this could not have been resolved earlier.
The very thought of a bureaucracy decreeing a person’s death makes my stomach turn. And even if lawyers are eager to see it differently: a court is bureaucratic institution. One of the basic features of bureaucratic institutions is that officials have little to no personal stake in the consequences of their decisions—no “skin in the game.” Courts are designed this way quite deliberately; it is no design flaw, no unintended side effect. No civil servant is more shielded from the consequences of his actions than the judge. This is called judicial independence and is a technical necessity of the office. Without it, impartiality is simply impossible. But at the same time, it means that the judge—especially the criminal judge—decides over human fate without being personally invested. This, as said, is necessary.
Concerning capital punishment, however, this detachment of the judge gives the act its special character, setting it apart from all other killings. There are many reasons to kill a person: revenge, anger, necessity, hatred, greed, error, enmity. Good or bad, heroic or cowardly—each of these reasons is in some way an expression of the struggle, which is life itself. The judge, by contrast, orders a killing through the application of a paragraph. He stays outside of the story of that killing. Death sentence and execution are administrative acts of the state—the Leviathan, which, whatever its advantages, by its very nature degrades the humans living within it to units of administration, even if it elevates “human dignity” to the rank of a fundamental constitutional right.
The act of execution, the bureaucratic killing of a human being by official decree, has always aroused far greater unease than killing itself. The soldier is a hero. The hangman an outcast. So it has always been, especially in the early modern period, when the death penalty reached its peak in European criminal law. The profession of executioner formally belonged to the dishonorable trades. In many towns, it was held in personal union with that of the knacker, the disposer of animal carcasses. Socially, most executioners stood closer to the condemned they executed than to the bourgeois society that offloaded this task onto them. This is one of the most disturbing aspects of the death penalty. The principle that the one who pronounces the sentence must also swing the sword exists only in fantasy novels. All real societies in history have shifted executions onto social outcasts and people whose lives had already been destroyed by some tragedy or another.
That has not changed to this day. In the United States, the identities of execution team members are secret. In 2006, however, Missouri’s staff list was leaked. The doctor responsible for administering the lethal injection was dyslexic and had more than 20 malpractice suits against him. Other members had similar backgrounds. In 2009, the state reacted to the scandal by criminalizing the publication of such information.
The bourgeois citizen demands that “justice be served,” but carrying out what he declares to be justice he cannot stomach doing that. Hence all those contraptions, from the gallows to the guillotine to the lethal injection, designed to automate execution. This has nothing to do with efficiency. Crushing a skull doesn’t take any longer. It serves only psychological distancing. And while in the past religion and concern for the condemned’s soul offered a cope, modern states have instead fixated on keeping the entire process as hidden as possible1.
Bureaucratic procedure and flight from responsibility are essential features of the death penalty. In a modern administrative state, which is and must be a managerial state, these features are even more pronounced than in times past. Yet as much as this bureaucratic killing repels us, one cannot deny this much: as the thing it is—as an administrative measure—it is very effective. What we call crime-fighting is, in reality, crime management, albeit with the goal of reducing that which is managed. Policing is applied statistics. It is about lowering crime rates, and it is a truism that the best way to do so is by eliminating criminals.
A long-term Swedish study in 20132 found that 1% of the population accounted for 63% of all violent crimes. The study concluded:
“The vast majority of violent crimes are perpetrated by a small number of persistent violent offenders, almost all males, who have an early onset of violent criminality and display substance use problems, personality disorders, and nonviolent criminality. These findings support the provision of far-reaching interventions among young individuals who have committed one or two violent crimes and are at risk of developing persistent violent criminal behavior. ”
The latter is precisely what early modern criminal law did, where “far-reaching interventions” after one or two violent crimes—or even other offenses—consisted of execution, often at a young age. That not only eliminated an offender who, with high probability, would have committed another crime at some point. Unlike the alternative solution of mass incarceration, it also avoided the problem of prison gangs, which in every modern state form a separate criminal ecosystem—especially in the United States, where, despite capital punishment still being on the books in most states, mass incarceration has largely replaced the death penalty as a method of crime prevention. One in 200 Americans lives behind bars. That prevents the worst, but you cannot deny that the death penalty is a more efficient method of crime control.
Schattenmacher3 recently even made the return to high execution figures the benchmark of a “happening” real change, as opposed to the endless outrage over senseless brutality. His unsurprising conclusion: This is unlikely. In the short term, yes, but in the long run? The greater the crime problem grows through an imported underclass, the more likely it is that administrative pragmatism will prevail over human revulsion and the will to deny the Leviathan direct authority over the life and death of its administered masses. Some may see this as a return to the historical norm. But it will cost us yet another piece of what it means to be human.