Killing Times: Theory and the Abolition of the Death Penalty
Fonda Shen
In the introduction of Killing Times: The Temporal Technology of the Death Penalty (Fordham University Press, 2019), David Wills, currently Professor of French and Comparative Literature at Brown University, declares his book to be abolitionist, meant to lead the reader to pronounce time of death on the death penalty.
There is certainly no dearth of such treatises. They attack the practice from every possible direction, pointing out injustices of all sorts: racist policing; elected judges overriding jury recommendations of life; tortuous method of lethal injection. If one reads such texts frequently enough, it is easy to feel that the death penalty must already have been abolished in this country while one was still reading.
But Wills, unlike most authors who write on the subject, has limited interest in who does the killing or who is ultimately killed by the death penalty. Unlike either prosecutors on the one hand, who spend their time vilifying the condemned (or soon-to-be condemned), or defense attorneys on the other hand, who spend years crafting a humanizing portrait of their clients, Wills takes no “explicit moral position” (6). He is against the death penalty because he has already seen a world without it and found it, frankly, to be just fine. He grew up in Minnesota, he tells us, where the death penalty was and is no longer on the books, and considers his own views on the matter to be based upon a finding of “death-penalty irrelevance” (6). The death penalty and the controversy surrounding it are not the inevitable product of this country’s history, but rather “a particularly troubling anachronism in the genealogy of American justice and jurisprudence” (6). Legal execution is something that happens in spite of, rather than because of, American justice and jurisprudence (it is worth noting that he links the death penalty to the transatlantic slave trade only by way of a discussion on drone strikes). Wills decontextualizes the death penalty, removes it from American history, in order to define it instead as a project of theory.
Detaching the death penalty as a practice from any one historical context allows Wills to analyze it first and foremost as an effort (a theoretical, multi-century, cross-cultural effort) to manipulate time. No matter where or how it is practiced, Wills argues, the death penalty is primarily a manufactured and mechanical interruption of time, the lead-up to the execution a sort of manipulated and distorted time. And time itself is a prosthetic to the human mortal life, a technological appendage, that allows for life. The death penalty, the machine of death (a concept he borrows liberally from Justice Blackmun), is a negation of the concept of the prosthetic: when it is attached, it shortens rather than extends mortal time. His interest in the death penalty revolves around the triangular relationship between time, technology, and the mortal life (and by extension, the death that defines the mortal).
If there is one way to summarize why Wills finds the act of execution itself, separate from its role in carrying out justice, to be so intolerable, it is that it too clearly reveals the prosthetic role that time serves to mortal life. Wills argues that we find our attachment to the technology called time tolerable and refrain from obsessing constantly on the moment of inevitable death because we don’t know when death is coming, when time will stop, even though we know it has to happen at some point. The death penalty takes away this necessary blindness by forcing transformation of the condemned from a mortal creature to one simply dwelling in a temporary state of “un-mortality” (212). And thus, unlike usual prosthetics, which are meant to extend the life of a person up to an indefinite point, the machine of the death penalty inverts this role by shortening the life of the person to a clearly defined point.
The title of the book, Killing Times, is the synonym that Wills creates for the death penalty itself. It is the death penalty as a concept, an ideal, writ large, broadened across time and space beyond the result of the bifurcated process that Americans know to include extrajudicial drone strikes, the guillotining of the Terror, and suicide bombing.
The first chapter of his book is a comprehensive survey of Eighth Amendment jurisprudence intertwined with death penalty jurisprudence, beginning with Justice Blackmun’s notorious dissent in Callins v. Collins in which he declares that he will no longer “tinker with the machinery of death.” In this chapter, Wills also discusses the key role of time in the definition of cruel and unusual punishment, both how it has changed with “the evolving standards of decency” through time, and how the length of punishment itself dictates its constitutionality under the 8th Amendment. He goes on to discuss the development of the guillotine in France, drawing a comparison between the guillotine and the invention of photography, whose function he argues both parallels the function of the guillotine yet simultaneously negates the guillotine’s rationality by capturing its goriness. Photography reflects the instantaneity that Wills finds to be crucial to the (unfortunate but expiring) legitimacy of the death penalty. He takes a deeply theoretical turn in Chapter 3, using blood, its rhythm and its circulation, to represent time itself and to show that blood is shed in all executions, even in today’s age of lethal injection.
Starting from Chapter 4, Wills switches to a discussion of what might be termed “extra-judicial” executions, which exempt killing from even the barely-existing due process of the Terror. In Chapter 4, Wills discusses the suicide bomber as both the perfect manifestation of the death penalty’s goal of instantaneous justice and the ultimate hijacker of justice itself. In Chapter 5, through his discussion of extra-judicial drone strikes, he “calls into question the traditional respect for a distinction between killing in war and murder,” and by extension, he also blurs the lines between killing in war and the death penalty. The victims of the drone strikes, after all, are often neither combatants nor those convicted of any crime. They are instead on the receiving end of what Wills calls “the drone penalty” (174), whose secrecy and instantaneity, he argues, approximates a divine act that replaces habeas corpus with habemas cadaver. But Wills does not call this justice. He believes that justice, “due process in due time,” requires that the moment of introduction between the executioner and the executed not equal the moment of execution itself. Finally, in Chapter 6, he turns from the death penalty to the narrative surrounding the death penalty, the recounting of the crime, the avowal of the condemned, which make the death penalty into a form of both confession and pronouncement of judgment.
He pays special attention to I, Pierre Rivière, a memoir by the perpetrator of a multiple homicide, which was edited by Michel Foucault. In the memoir, the renouncing of his notorious crime was situated in the discursive quality of the crime itself. The history of Rivière’s act, through the practice and content of his memoir, becomes indistinguishable from the narrative of it. Wills uses this instance to add another temporal dimension to the death penalty, pointing to the role of time in the crime itself, rather than the penalty. Capital crimes today require a passage of time between the narrative fiction of the crime, legally coined “premeditation,” and the commission of the crime itself (199).
Wills’s book is unabashedly written for those who are more than one degree of separation from the death penalty. This allows him to take more license with how he defines it. That freedom to move beyond Glossip and Gregg, Lockett and Trop, to associate and speculate, is perhaps why his jarring belief in the death penalty as an anachronism is so powerful. By leaping across time and space from within the staid walls of the 20th-century Supreme Court, back to the blood-filled yet rationally clean-cut days of Robespierre’s Terror, to the perfect synthesis of crime and punishment (but without the justice that purportedly legitimates the punishment) of the suicide bomber, and finally to the drone-strike, the ultimate execution as a divine lightning-bolt from Zeus, Wills exposes how these centuries of trying to perfect the death penalty as an instantaneous act of justice have failed. The suicide bomber manipulates time better. The drone strike does it better. Even the guillotine of the Terror, without the hassle of due process, but rather simply a pronouncement of treason and then the ax, manipulates time better, acts as a negative prosthetic to life better, than the “machinery of death” that Blackmun washed his hands of.
But these are not the acts of justice that Wills believes to be the underlying reason of the death penalty as practiced today. There is a tension between how justice is supposed to work, and how the death penalty is supposed to manipulate time. Blackmun’s machine, after all, was not actually that of death, but that of death as justice. Thus, it is inevitably a failed contraption. As a negative prosthetic, as technology, the death penalty simply cannot work in tandem with the machinery of justice.
Wills’s argument for abolition is a profoundly optimistic one, based as it is upon an axiomatic belief that the death penalty, like all other forms of capital punishment, aspires to justice. The death penalty is an anachronism because it simply cannot fit into the standard of justice that Wills believes we have today in the United States. He shows that it is possible, to a reasonable degree, to kill someone instantaneously. But he also believes that our society believes in a due process that leads to justice. The two simply cannot be reconciled. To use Wills’s own framework, the death penalty as a prosthetic that manipulates time for the mortal so that their very existence is redefined cannot coexist with the machine that metes out legal justice.
Fonda Shen is currently a junior studying political science at Columbia University. She plans eventually to pursue a legal career in criminal defense. She works as a research assistant on death penalty legal defense teams and helps to run college courses and workshops on Rikers Island. She is also a former editor at Columbia Daily Spectator.
