Doubt-Fucking
PEG’s defense of capital punishment – the most imaginative and perhaps convincing one I think I’ve read – got me thinking more specifically (but not that specifically!) about my own objections to it. I’ll settle on the one objection that I haven’t heard anyone else air (which assures you that it will be weird). I’m not even sure it, in itself, amounts to an argument against capital punishment, as much as it is merely a characterization of what makes it politically repulsive to me: The specter of the state pondering the ultimacy of the sentence it’s about to execute – the dignity and gravity it would seem to call for, the juridical certainty it would seem to require – as against the earthy politics that underlay the prosecution and the inherently flawed procedures used to reach that sentence, and the fact that in executing the sentence it is depriving itself of the prospect of redeeming those flaws (which prospect implicitly underwrites all of its non-capital judgments), and then having the official and unofficial process of appeal and critique carry on for however many months or years, perhaps tilting the balance of judgment in the direction of greater and more reasonable doubt, if not into wide belief in actual innocence, and then having the state, anxious to avoid the appearance of self-doubt and, indeed, anxious to assert the primacy of its decisive powers over doubt and the procedures that encode it in this high-stakes moment it’s brought upon itself, stand (figuratively) at a podium with a defiant sneer on its official lips and say: “Fuck it. Kill him anyway.”
There’s an element of this in every death penalty case that reaches the public consciousness. A collective sigh naturally rises when the prisoner is finally killed, in doubt about the state’s authority to take a life, and, more tellingly, in skepticism about the procedure that brought the state and its prisoner to that particular point. In reaction, having placed itself under burdens it can’t actually meet, the state has to claim, as Rick Perry congratulated the State of Georgia for implicitly claiming, that such hypothetical doubts of academics and other professional nay-sayers have cost it not a moment of sleep. It can’t claim to have satisfied the doubts that nag its choice of punishment, and that its choice of punishment directs onto its legal institutions. But it’s obliged nonetheless to effect confidence, certainty. After you’ve killed a suspect is no time to go publicly musing on the flaws of eyewitness testimony or the idiosyncratic ways of your forensic arson voodoo specialist. So instead the state claims to float royally above those doubts. Its dignity and legitimacy at the moment of such a final decision rest upon, and attest to, the power the people have vested in it to say: “Fuck doubt.”
The disturbing thing – or perhaps the awesome and reassuring thing, depending on what you’re looking for in political legitimacy – is that this power is real. It works. People are reassured when the state negates doubt not procedurally or epistemologically but existentially. The death penalty throws citizens into a crisis of knowing that the state resolves on their behalf through a defiant willingness to act with finality in the face of valid doubts, a stance you might call doubt-fucking.
Doubt-fucking is a condition of ecstatic untruth. We all experience it, in those moments when we can give no more time to deliberation and simply must act. But it takes on surly and disquieting notes when it’s the state, and the state is ritually killing people, because as prosecutor the state has publicly draped itself in expectations pertaining directly to the truth of its criminal judgments, which capital cases force it to disavow at the last minute, and force the people who have traveled that far with the state to disavow alongside it. The state says, and invites its citizens to say: We are literally beyond caring about the truth, or, we reject that our convictions about the truth should be linked to valid procedures for discovering it. Our actions in this moment testify to our unquestioned capacity to act, our power to set the terms of legitimacy in action by acting.
Now I realize that politics is neither the review procedure of a scientific journal nor beanbag. I admit that political authority will always have this element of peremptory self-assertion. I do, however, think that policies that force the state into a repeating performance in which it trumps the epistemic scruples of its own procedures with a surly display of its decisive authority set a certain unhappy precedent, invite and perhaps condition people, in awe and maybe something vicarious, to accede to state power precisely because it is self-given, grounded in power itself.
I think that this reply to PEG’s odd post is too kind; the angels-dancing-on-a-head-of-a-pin musings about what we can truly recompense was also hell of bizarre.
That said, I’ve messed around with something most people would call “doubt-fucking” and I assure you that that term isn’t used the way you used it here.
— Kieselguhr Kid · Sep 23, 10:40 AM · #
“You can’t throw bull with the ocean, she won’t listen.” — Harold H “Dynamite” Payson
— David Ryan · Sep 23, 11:32 AM · #
Thanks for an excellent post.
I guess my only response would be to say that if ritualized killing by the state will make people more likely to acquiesce to more state power and numbly fall in line, what to make of the gulag system under which we now live? Of a society where nominally liberal commentators endorse state-sanctioned rape as punishment for putative fraud? Where we are all felons and state-sanctioned torture lurks in the back of our minds as a highly improbable, but possible and terrifying possibility for actions of daily life? (Never downloaded a song without the proper rights? Had a drink before 21? Smoked a joint? Ran a red light? Forgot a bottle of water in your carry-on bag? Filed all your taxes correctly, ever?)
“Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes.” From my favorite YouTube video ever.
Any state by definition is rooted in violence. That’s the nature of the beast. States do not draw legitimacy by whether they use violence but how and under what rules which reflect what values.
— PEG · Sep 23, 01:01 PM · #
Thanks for this post! i really enjoyed reading it!!!
— term paper · Sep 23, 02:17 PM · #
According to the Bureau of Justice Statistics, the average time a convicted murderer spends on death row until his execution has gone from an average or 51 months in 1983 to 169 months in 2009. I don’t think anyone can argue that spending an average of 14 years between sentence and punishment isn’t ridiculous. And while there likely are other reasons for that excessive delay, I’d bet one of the biggest is repeated appeals by defendents and death penalty opponents in cases where there actually is no reasonable doubt about the guilt of the convicted killer. Is there any other reason it took 13 years to execute one of the guys who dragged James Byrd to death?
Death penalty opponents have largely abandoned the political fight against capital punishment and instead have turned to the legal system to win a victory by making it prohibitively difficult to execute anyone. I could be wrong, but I suspect the sometimes ugly reactions of death penalty supporters stem from having won the political debate on capital punishment, only to see that victory undermined and assailed by non-democratic legal challenges.
Mike
— MBunge · Sep 23, 02:51 PM · #
Talking about political debates having been won is bizarre. Politics evolve. Ten years ago, the political debate about gay marriage was “won.” Now? Times have changed. And you’ll note that there, as has happened many, many times in our country’s history, judicial decisions have preceded political “victory.”
Unless you’re willing to abandon support for any political commitment that you don’t currently share with the majority, I don’t think talking about how your side has won so we should speed people to their graves is remotely compelling, Mike.
— Freddie · Sep 23, 03:02 PM · #
So elections don’t have any consequences, Freddie? It seems to me that’s what he’s talking about.
I am also opposed to the death penalty, my reasons aren’t original so I won’t go into them, but I want to say something about PEG’s characterization of a society that countenances life imprisonment but not capital punishment as valuing life more than liberty.
The implication he seems to be making is that such a society has nothing that an individual is willing to die for, and that is bad. Now I agree that that would be bad, but it does not follow from the premise. And there should be nothing the state can compel someone to die for. Even during conscription one could claim conscientious objector status. This is a disturbingly disingenuous line of argument.
— Gabe Ruth · Sep 23, 04:10 PM · #
“Talking about political debates having been won is bizarre.”
Yes, politics and public attitudes change. I didn’t really think I needed to dumb things down so much as to note that. I thought people would be smart enough to understand that I was referencing the reality that the death penalty is now and has almost always been supported by an overwhelming majority of the American public and there’s no indication that’s going to change any time soon.
It’s entirely possible a majority of the public may one day oppose the death penalty, particulary if opponents of capital punishment consistently pursue the sort of political and cultural campaign we’ve seen on behalf of equal rights for gay folks. I suspect it will never happen if death penalty opponents continue to eschew the hard work and try and circumvent democracy through the legal system.
Or to put it another way, why do you think there’s been so much more movement on attitudes toward homosexuality than there has been on abortion?
Mike
— MBunge · Sep 23, 04:21 PM · #
Oops. I accidentally left in the preceding sentence. Still…
— James · Sep 23, 05:00 PM · #
Good post. Perhaps this sentence could have been broken into slightly smaller chunks:
“I’m not even sure it, in itself, amounts to an argument against capital punishment, as much as it is merely a characterization of what makes it politically repulsive to me: The specter of the state pondering the ultimacy of the sentence it’s about to execute – the dignity and gravity it would seem to call for, the juridical certainty it would seem to require – as against the earthy politics that underlay the prosecution and the inherently flawed procedures used to reach that sentence, and the fact that in executing the sentence it is depriving itself of the prospect of redeeming those flaws (which prospect implicitly underwrites all of its non-capital judgments), and then having the official and unofficial process of appeal and critique carry on for however many months or years, perhaps tilting the balance of judgment in the direction of greater and more reasonable doubt, if not into wide belief in actual innocence, and then having the state, anxious to avoid the appearance of self-doubt and, indeed, anxious to assert the primacy of its decisive powers over doubt and the procedures that encode it in this high-stakes moment it’s brought upon itself, stand (figuratively) at a podium with a defiant sneer on its official lips and say: “Fuck it. Kill him anyway.””
— James · Sep 23, 05:03 PM · #
Nice to see that Matt has the courtesy and courage to open his posts to comments from the unwashed masses, unlike PEG.
— stephan · Sep 23, 10:12 PM · #
Again— overwhelming majorities opposed gay marriage as recently as 2004. Judicial victory led the way, not legislation.
— Freddie · Sep 24, 02:43 AM · #
stephen: you’re right, the reason why I don’t want to have to swim across a river of shit is cowardice.
— PEG · Sep 24, 06:41 PM · #
I agree with James: a writer who crafts a 212-word sentence could benefit from developing editing skills.
— John Fletcher · Sep 25, 04:33 PM · #
John & James: It’s not a sentence. It’s a phrase.
— Matt Feeney · Sep 25, 06:56 PM · #
If you take such a dim view of the readers of TAS, nobody’s twisting your arm to make you post here. Nobody’s reading but us, PEG. Maybe you’d like to cast your pearls before a different set of swine?
— Chet · Sep 26, 04:39 AM · #
I think the problem Matt Feeney describes with capital punishment illuminates the underlying, fundamental way this most inefficient of judicial acts distorts the whole system. I also think it points up one interesting political problem with capital punishment: it contradicts the fundamental appeal to caution and prudence that underlies conservatism. American states that carry out executions commit deeply, even recklessly unconservative acts.
That, in turn, gives us a clue to the deepest problem of capital punishment as conceived and carried out in the United States today. Essentially, a major premise of the present ideology behind capital punishment holds that society falls into two categories: an “us”, the so-called regular folks, the “decent people” and a “them”, the criminals. And “we” act out “our” superiority, the power that makes us secure by putting some of “them” to death. And “we” do this even if, or perhaps even because, we have to ignore some doubts.
Consider these phrases by Judson Philips of Tea Party Nation (courtesy of Right Wing Watch)
In which universe does concern over a case by so-called liberal celebrities have any evidentiary value whatever? Only a universe in which that concern indicates Troy Davis belonged to the “others”, and in which that alone suffices to indicate guilt sufficient to justify execution.
The quote above also refers to the cost and time required to execute a person, something that Mike also touched on above. And that leads back to the unconservative nature of capital punishment as practiced in the United States today. In Gregg v Georgia, the Supreme Court of the day accepted the premise that states that chose to execute would implement super due process designed to prevent any possibility of a mistake. And in many unimportant respects, they have done so. Capital punishment costs more than any alternative (I’d appreciate anyone who wants to post a meaningless screed about the cost of a bullet looking up the facts first) because from the first preparation of the case notes, a capital case requires exponentially more care, attention, time, and therefore money. Most of the cost of a death sentence gets spent on the original trial, and a fair fraction of it goes in asking for a death sentence where a jury or even a grand jury decides life will do. Appeals cause the majority of the delay in the execution of a capital sentence, but they do not cost very much in monetary terms. But the objection that a constraint on state power costs too much money, or time, or even discomfort, again violates the spirit of conservative caution. The so-called tea party certainly does not appear to have any objection to recourse to the courts or constitution when it comes to litigating the affordable care act.
The United States constitution says that states can enact capital statutes and carry out executions. It also severely limits the scope of their ability to do so. Constraints on government power lie at the heart of both conservatism and the American project. American conservatives who call for more executions behave in a contradictory manner in at least two ways.
— John Spragge · Oct 1, 10:00 PM · #