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Who Deserves to Die?

Constructing the Executable Subject

edited by Austin Sarat and Karl Shoemaker

Publication Year: 2011

How do we select those who will be subject to capital punishment? How do we identify the worst of the worst and decide who among them can and should be executed? Today these questions are more pressing than they have ever been. As the number of people sentenced to death and executed declines in the United States, those who are executed stand out as distinctive kinds of criminals, distinctive kinds of people. Does a death sentence affirm or deny their humanity? Is such a sentence an act of revenge or a carefully calculated act of justice? These are more than questions for policy and law. They are one way of getting a handle on how our culture understands what makes life worth preserving and of delving into its complex calculus of punishment and retribution. Who Deserves to Die? brings together a distinguished group of death penalty scholars to assess the forms of legal subjectivity and legal community that are supported and constructed by the doctrines and practices of punishment by death in the United States. They help us understand what we do and who we become when we decide who is fit for execution. In addition to the editors, contributors include Vanessa Barker, Thomas L. Dumm, Daniel Markel, Linda Meyer, Ruth A. Miller, Ravit Reichman, Susan R. Schmeiser, Mateo Taussig-Rubbo, and Robert Weisberg.

Published by: University of Massachusetts Press

Title Page

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pp. iii

Copyright Page

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pp. iv

Table of Contents

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pp. vii-viii

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pp. ix

This book grew out of a workshop held at Amherst College in the fall of 2008. We are grateful for financial support from Amherst’s Department of Law, Jurisprudence, and Social Thought and for the skilled research assistance of Tovah Ackerman.

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Between the Promise of a Shared Moral World and the Utter Unintelligibility of Death Itself: An Introduction to the Construction of Executable Subjects

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pp. 1-20

On December 13, 2005, the state of California executed Stanley “Tookie” Williams for the 1979 murders of four people, making him one of more than 1,100 put to death in the United States since the resumption of capital punishment after the United States Supreme Court’s 1976 decision in Gregg v. Georgia.1 Williams, who was infamous for his role in founding ...

Part One: What Kind of Self Is the Executable Subject?

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Chapter 1: The Medieval Origins of the Supreme Court’s Prohibition on Executing the Insane

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pp. 23-39

The history of capital punishment holds an unsettling place in the United States Supreme Court’s death penalty jurisprudence. On the one hand, the widespread acceptance of capital punishment in the early Republic is powerful evidence that, however the Eighth Amendment was meant to regulate punishment at the time of the framing, the sentence of death ...

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Chapter 2: The Unlucky Psychopath as Death Penalty Prototype

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pp. 40-72

Much commentary on the death penalty sets out to identify the type of character that American criminal law deems worthy of the death penalty, the set of moral or psychological traits that define the person who, for some deontological reasons, deserves death or whom, for various practical reasons, we need to execute. Some of that commentary is descriptive ...

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Chapter 3: Waiving from Death Row

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pp. 73-110

Even, or perhaps especially, for the most punitive among us, it makes little sense to say that the prisoner who invited and embraced execution got what he or she deserved. Whereas reigning theories of punishment understand privation as a detriment, the martyr makes a triumph of suffering just as the masochist makes pleasure out of pain. Revenge, though ...

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Chapter 4: No Remorse

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pp. 111-127

“Now and then it is possible to observe the moral life in process of revising itself,” Lionel Trilling wrote in the first sentence of Sincerity and Authenticity. Such a shift, he continues, can be seen “perhaps by reducing the emphasis it formerly placed upon one or another of its elements, perhaps by inventing and adding to itself a new element, some mode of conduct ...

Part Two: Constructing the Executable Subject: Sacrifice and the Rituals of State Killing

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Chapter 5: The Unsacrificeable Subject?

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pp. 131-150

Who deserves to die? In a book focused on the death penalty in the United States, a fair assumption is that this question envisages death as a punishment. Recent decisions by the United States Supreme Court have focused the question by limiting the application of the death penalty when defendants are minors, when the defendants are unable to understand the ...

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Chapter 6: Last Words: Structuring the State’s Power to Punish

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pp. 151-175

In the moment of death, the state must reincorporate the condemned into a shared moral community to maintain its legitimacy. If the state executes the condemned without his or her momentary reintegration, the rationale for the execution and by extension the state’s power to punish is jeopardized. Retributive justice, the current constitutional justification for the ...

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Chapter 7: The Meaning of Death: Last Words, Last Meals

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pp. 176-206

What is the meaning of capital punishment? Retribution? Atonement? Euthanasia of the socially undesirable subhuman? Revenge? State-sanctioned murder? The triumph of discipline and technique? Martyrdom? The moment of authentic confrontation with finitude, individuality, and the conditions of autonomy? The final, cautionary chapter of a life-of-crime ...

Part Three: New Perspectives on Selfhood and the Purposes of Capital Punishment

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Chapter 8: Executing Retributivism: Panetti and the Future of the Eighth Amendment

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pp. 209-252

Whom may a state execute? In Panetti v. Quarterman,1 the United States Supreme Court decided that only those defendants who rationally understand why they are being executed are in fact fit for capital punishment. This chapter argues that this purportedly narrow holding lays the groundwork for a new beginning of the Court’s death penalty jurisprudence ...

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Chapter 9: Therapeutic Death

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pp. 253-274

My interest is the therapeutic potential of capital punishment in the United States. A number of recent United States Supreme Court rulings have understood the death penalty to be a form of rehabilitation or cure, a compassionate punishment taken to its logical conclusion. These rulings have been situated within a rhetoric of welfare, care, and concern, producing ...

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Chapter 10: The Dead, the Human Animal, the Executable Subject

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pp. 275-300

When a fallible decision results in an absolute end, by what right is a state allowed to exercise its imperfect judgment? In response to this question, the law has become an instrument of the state that mediates our rage, a tool for those who seek to mitigate the unreasonable desire for justice that makes some of us want to kill those who have killed. Reasonable justice ...

Notes on Contributors

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pp. 301-302


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pp. 303-312

Back Cover

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E-ISBN-13: 9781613761861
E-ISBN-10: 1613761864
Print-ISBN-13: 9781558498822
Print-ISBN-10: 1558498826

Page Count: 320
Publication Year: 2011

Research Areas


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Subject Headings

  • Discrimination in capital punishment -- United States.
  • Capital punishment -- Moral and ethical aspects -- United States.
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