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Capital/Punishment
ACLA
Judith Butler
March 2014

I approached this task by wondering how to link the sense of capital that
informs our understanding of capitalism with the sense of capital that we find in the
notion of capital punishment. As you know, the term capital derived from the
Latin caput and capitalis , pertaining to the head, and is even linked to the German kaput
which seems to link the head with something broken, not working, or finished.
Apparently, that usage is traced to medieval Germanic burial squads who counted the
heads of corpses, that is, those who were done in or finished.
i
So, consider that from
the start, capital implied something about a severable and exchangeable head. The
term capital emerged in the mid 13
th
century as a way of measuring wealth by counting
the number of cattle heads a person had his moveable stock. It seems that cattle and
chattel both have etymological links with capital, and that all of them seem to be
related to countable heads, heads that stand for larger bodies and to some extent
separable from them.
We are then already in the orbit of animal trade in tracking the etymologies of
capital, where the animal, understood as stock, is not clearly demarcated from other
sorts of chattel that include slaves, equipment, and goods; from the start, capital names
a set of properties variously and interchangeably animate and inanimate. A certain
functional synecdoche has already taken hold, since we are talking about a head that
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can be moved, sold, and traded. The head is a figure for what is countable and can be
consolidated as wealth. Ones capital would be then the unified effect of all the heads
that one can count as belonging to ones own domain; the head is figured here as a
discrete and countable mass, a figure that will become a monetary unit that establishes
forms of equivalence among human, animal, and object dimensions of wealth. The head
in its singular and compound forms is there, we might say, as the constitutive figure of
money, and often, in its sovereign form, quite graphically imprinted on the coin.
There is, however, a further sense of capital that we find in medieval Latin
sources that describes the principle part of ones wealth, the part or pars capitalis that
one could loan out at a profit. So capital is not only the numerous heads one can count,
and the cumulative and consolidated effect of that counting as a plural noun, but also
what one can mobilize through exchange, where the exchange is the loan for which
profitable repayment is due. The figure of the head was already a conversion into a
unit of value, a synecdoche by which equivalence could be established. Those objects,
animals, and others somehow become the head that is ones capital, but that head is also
abstracted from all of them, the very figure for that abstraction that precedes and
accompanies the function of money [the relation between creditor and debtor does
have the form of a money-relation was only the reflection of an antagonism which lay
deeper, at the level of the economic conditions of existence. (233 Capital )] - it precedes
capitalism and capitalists by centuries: though Marx refers to capitalists, capitalism
only appears in scattered form in the 18
th
and 19
th
century, entering discourse with
significant stability in about 1908, several decades after Marx.
ii
(it was the soviet editions
of his work that added the term).
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In a sense already eery, that is, prefiguring what we might mean by capital
punishment, heads become separable from bodies when they are counted. I can count
the heads of what I own and produce for myself a single head or principle part of my
wealth, and give over or exchange my head, loaning out part of my head, which is
already a conglomeration of other heads, with the understanding that I can take it back
at any time, and that you can have it only at a price as long as I retain more than enough
sfor myself. I am engaged in a form of abstract organ trafficking with my own head,
this body part regarded as separable from the rest, made separable through the
institution of the loan. On the one hand, the idea of capital performs a substitution,
through condensation and abstraction, for cattle, goods, tools, and slaves; on the other
hand, capital is the principle part from which loans are made with the expectation of a
profitable return. It is not only that ones capital can be loaned out on occasion, but that
loan for profit establishes whatever I have as capital.
Usury was classically the name for money paid on a loan and, over time,
morphs into interest and even debt, the burden on those who must pay to purchase
the stock, including the labor and land they require. Indeed, for tenants, for instance,
who pay for the head they require for subsistence over time, debt becomes an ongoing
relationship, the condition of work and subsistence itself. For the land tenants
described by Adam Smith in The Wealth of Nations, they can only rent property and so
have no principle part, live off the principle part of the landowner with very little
expectation of overcoming their indebtedness. Without any principal part of wealth of
their own, they are already toiling in a certain zone of decapitation that will, I believe,
have consequences for our thinking about capital punishment. The slaves or
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indentured servants that a landowner owns are part of his head, but tenants who work
a plot of land, and exchange wage for subsistence live off the head of landowner with
no real head of their own.
I am not giving a social or economic history here, but only telling one version of
a story that follows from the tracking of implicit and explicit figural dimensions of the
etymology of capital. And yet, history does support me here since we can find plenty of
evidence that freed slaves or landless agrarian workers in the 17
th
and 18
th
centuries in
both England and in the United States who move from the status of being chattel to the
condition of debtors. One finds this, I would suggest, in the institutions of peonage into
which former slaves were conscripted after 1865 in the US. Facilitated by the
Freedmans Bureau, freed slaves were contracted to return to the land they worked
without wage only to pay rent through forfeiting all wages in advance for the privilege
and accruing debts that were deliberately unpayable. They were through this means
either contracted for life with no wage, or imprisoned for debt at which point they once
again labored without wage and lost rights of citizenship they had won in 1870 through
the 15
th
Amendment. Prisons became the means for continuing unpaid labour after
slavery, and as we will see, this history has a great deal to do with the social and
political history of the death penalty in this country.
iii

Capital Punishment is first found in Blackstone in 1765, just eleven years before
the publication of Smiths Wealth of Nations, and ten before Benthams discussion of the
utility of capital punishment in Rationales of Punishment (1775).
1
That last text detailed
forms of torture, including the hanging and public exposure of the retrained head and
buttocks, forms of public humiliation designed to inflict sufficient pain to deter the
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prisoner from recommitting his crime.
iv
Under what conditions is the head of the
prisoner taken away and taken off? If the prisoner never had any principle wealth, was
he already headless? Was he, from the start, counted as part of someone elses head,
what does it mean when the head is then removed as a form punishment? Who owned
that head such that it could be recalled and removed, and how does the law intervene
to confirm and literalize the headless status of the prisoner? The head of the sovereign
works in tandem with the head that is capital, something also true in the form and face
of money.
I want to caution against an easy answer to the question of what links capital to
capital punishment by suggesting that they are related through structural analogy or
causality. After all, heads were removed for many centuries prior to the emergence of
capital in the early modern sense. And yet, what links these two orbits of capital seems
to be a relation of debt, since capital punishment is, after all, a way of paying with your
head for a crime a contract of some kind has been broken, and restitution must be
made. Crime more generally is understood as incurring a debt to society by breaking
its laws, including its contract laws, one that can be paid only through penalty or
imprisonment. As we will see through tracking the relations between debt, injury, and
the social contract, to enter into a social contract is already to have offered up your head
into something that can be taken back or even taken away. There is no one creditor, but
freedom is enjoyed as a kind of rescindable credit, and honoring legal obligations as a
form of debt.
In Derridas first volume of The Death Penalty, he follows Nietzsches reflections
on debt in On the Genealogy of Morals, and asks: whence comes this bizarre, bizarre
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idea, this ancient, archaic (uralte) idea, this is so very deeply rooted, perhaps
indestructible idea, of a possible equivalence between injury and pain (Schaden und
Schmerz)? Whence come this strange hypothesis or presumption of an equivalence
between two such incommensurable things? What can a wrong and a suffering have in
common? By way of an answer, he claims, The origin of the legal subject, and
notably of penal law, is commercial law; it is the law of commerce, debt, the market, the
exchange between things, bodies, and monetary signs, with their general equivalent
and their surplus value, their interest. (152)
v

Nietzsche considers the jus talionis, the principle of equivalence according to
which a relation is set up between crime and punishment, between injury and the price
to be paid.(151) You may remember that for Nietzsche debt becomes important in On
the Genealogy of Morals when he sought to understand how somber thing, the
consciousness of guilt, bad conscience came into the world. Earlier he had lamented
that whole somber thing called reflection which presupposes that the self has taken
itself as the object of its relentless moral scrutiny and self-punishment. If one wants to
keep a promise, that is, to breed oneself as an animal capable of promising, one must
arrange for a memory to be burned into the will, submitting to a reign of terror in the
name of morality, administering pain to oneself in order to insure ones continuity and
calculability through time. If I am to be moral and keep my promises, I will remember
what I promised and remain the same I who first uttered that promise, resisting any
circumstances that might alter that I and its continuity through time, never dozing
when wakefulness is needed. The promise takes on another meaning in Nietzsche
when what I have promised is precisely to repay a debt, a promise by which I enter
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into, and become bound by, a certain kind of contract. What I have apparently burned
into the will, or had burned there, is a promise to remember and repay that debt, to
realize the promise within a calculable period of time, and so to become a calculable
creature. I can be counted on to count the time and count up the money to make that
payment, and that accountability is the promise. I myself have become calculable as I
keep the promise time and again. I can count on myself, and others can count on me.
Although I am not, or no longer, counted as the chattel of capital are counted I am not
directly part of anyones cumulative wealth, but if I prove to be capable of making a
contract, I can receive a loan and be relied upon to pay it back with interest, so that the
one who loans to me can rely on the interest that I pay and accumulate wealth from my
debt in a predictable way. If I am responsible, that is, a promising animal, then the one
who loans to me can calculate the profit he can make from my debt, and if I default, the
law will intervene to protect his interest in the interest he exacts from me.
vi
(of course, it
may be that as I busy myself with becoming responsible along these lines, the creditor
actually profits from my irresponsibility, from the time it takes to pay, from the
penalties exacted on me for not paying, and for keeping me in a more or less permanent
condition of indebtedness at which point I can become part of a debtor class whose
labor is easily exploited. (This has links with the neoliberal discourse on
responsibilization that holds subjects accountable for debts they cannot pay, moralizing
debt at the same time that it is systematically induced.) At stake in Nietzsches
consideration of punishment, however, is whether debt is a way of framing injury and
restitution (and implicitly a way of conceiving of the social contract), and repayment
becomes the guiding model for punishment and recovering rights of citizenship?
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So, again, Nietzsche does not prioritize unpaid debt as a kind of crime; rather, he
asks how criminality and punishment are conceived within the law on the model of
debt and restitution. Tracking the way that Roman laws continue in more subterfuge
ways in 19
th
century German jurisprudence, Nietzsche argues that any injury is
conceptualized as a debt, and every punishment is understood as a payment. Hence,
the field of suffering is pervasively economized, and the contract becomes the salient
model for human exchange. All manner of injury is now, according to Nietzsche,
modeled on the creditor-debtor relation. At the same time that injury is conceived as
default payment, the psyche develops according to a penitentiary logic. The psychic
form that payment takes is guilt, understood as a kind of perpetual payment that can
never pay off what it owes, punishing itself in direct proportion to the increase of the
debt itself. Punishment thus becomes a form of subjectivation: in punishing the
criminal for having inflicted an injury/ incurred a debt, a subject is formed who has the
singular capacity to punish itself for having failed to be calculable. And if one had
proven to be calculable, would no injury have occurred? Not quite, for the only way to
become a promising and calculable animal, according to Nietzsche, is precisely by
inflicting injury on oneself, burning a memory into the will such that the memory burns
time and again until the promise is fulfilled and every time the promise is broken, and
for all the time in between and for all the time in which it will not have been paid.
vii

Guilt becomes the psychic modality of the debtor who can neither quit nor fulfill
the contract. What, then, is the psychic modality of the creditor? Nietzsche remarks on
those Roman laws that allowed for debtors to be dismembered by their creditors or
their legal proxies: the creditor is granted a psychic reimbursementInstead of a
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thing, instead of something or someone, he will be given some pleasure, some
enjoyment [jouissance], a feeling of well-being or greater well-being (Wohlgefuehl), he
will be given a pleasure that consists in the voluptuous pleasure of causing the other to
sufferfaire le mal pour le plaisir de le faire, that is, of doing harm for the pleasure of
itIn place of some equivalent, something or someone, one grants in return, as
payment, the pleasure of doing violence (Genuss in der Vergewaltigung). And though
Derrida accepts the translation of Vergewaltigung as violence (usually Gewalt), it is also
the German word for rape, raising the problem of whether it is possible to distinguish
between sexualized and desexualized forms of destructiveness in forms of legal
punishment. The debtor becomes the one who is always paying in a situation in which
nothing can finally be paid off; the creditor is always punishing, and enjoying that
apparently infinite task. The creditor does not really want to become whole again, but
only to profit and punish more joyfully for an indefinite period of time. So keeping his
principle parts circulating at a profit brings the creditor his pleasure, and punishing
those debts, even establishing them as unpayable, opens up a potentially infinite future
for sadistic delight by establishing the prison on the model of social debt; sentencing
becomes a way of enforcing and extending the time of debt. -
viii

For Nietzsche, and for Derrida who follows him closely, legal punishment, quite
apart from serving its stated purposes, maintains a furtive vocation, the free and
pleasurable exercise of sadism. What cruelty does punishment require and allow, foster,
generate exponentially, and rationalize?
Nietzsche found cruelty, nay, festive cruelty to pervade the domains of
morality and law. That is an explicit part of Benthams reflections on punishment, and
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shows up quite explicitly when Kant defends the death penalty on the basis of a
categorial imperative which, Nietzsche claims, reeks of (reicht von) cruelty.
ix
It was in
the sphere of legal obligations, he writes, that the uncanny intertwining of the ideas of
guilt and suffering was first effected. (GM,II,6). But he also writes something more,
namely, that commercial contracts presuppose a social contract that requires that
humans undergo an internalization of their aggressive drives. Indeed, the capacity to
promise that is developed in order to enter into the social contract preconditions the
capacities to enter into commercial contracts.
x
It also brings about that serious illness
that man was bound to contract under the stress of the most fundamental change he
ever experienced that change which occurred when he could himself finally enclosed
within the walls of society and of peace. (GM, II,16). This illness is clearly part of what
is being described by Freud as the Unbehagen of civilization, which includes guilt
and its suicidal trajectory.
So one of Derridas central questions becomes: Can those who oppose the death
penalty escape cruelty? Nietzsche already intimates that cruelty may well be primary,
and that its repression is simply a way of directing cruelty against the subject. Bad
conscience is a way of not expressing aggression outwardly by recircuiting aggression
against itself. The prohibition on aggressive action is an aggressive attack on aggression
which, then, paradoxically preserves, even redoubles, aggression even as it seeks its
eradication. The abolitionists oppose the death penalty, but cannot overcome the
murderous aggression of those who support it. Derrida writes, The figure of abolition
is that of the death of the death penalty. (202) Those who oppose the death penalty
call for its death, and so participate in some way in a zone of murderousness that may
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not be eradicable.
To understand this ineradicable zone, Derrids turns to Freuds reflections on
aggression and, indeed, the death drive, focusing on Beyond the Pleasure Principle (1920),
that text which proves to be so surprising as it calls into question the exclusive
operation of the pleasure principle as the organizing principle of psychic life. Are there
modes of destructiveness that cannot be explained by the pleasure principle? Derrida
is frank: at issue is a diagnosis of a cruelty that has no contrary because it is originary.
(159) Abolitionists oppose the death penalty on the grounds that it is cruel, but their
wish is to eradicate a form of cruelty that is originary in his view, and which can only
be re-circuited and never fully abolished.
xi
He continues, surpassing cruelty by an
apparent non-cruelty would be merely a surpassing in cruelty, a surfeit of cruelty, and
this finds its illustration, as concerns the death penalty, in the debate between, let us
say, abolitionism and non-abolitionism (160) Although Derrida stated quite clearly
that he opposed the death penalty, he nevertheless pursues a controversial reading of
this issue that points to the potential hypocrisy of the abolitionists. He notes that
Robespierre changed his mind from opposing to affirming the death penalty within two
years, depending on what seemed most useful to him, depending on whether he feared
for his own life, or wished for the death of his opponents. Those who oppose the death
penalty, such as Beccaria and sometimes Bentham, seem to prefer a long, drawn-out
form of cruel imprisonment, raising the question, which camp in this debate stands for
the more humane form of punishment? Wary of forms of aggression disguised as
benevolence, Derrida nevertheless asks whether those who oppose it are committed to
other projects of cruelty that are masked more elegant formulations of morality, ones
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that rationalize forms of imprisonment that decimate the person they keep alive,
prolonging the time of cruelty and the tenure of sadistic delight.
xii

What seems to be at stake is neither a random attitude of hostility nor even an
occasional propensity toward cruelty, but the broader problem of the death drive. For
Freud, the death drive emerges as a way of explaining repetition compulsions that are
not organized by the pleasure principle, that fail to establish any kind of sustainable
mastery. They appeared to him first as part of war neurosis and they were set apart
from forms of neurosis organized by wish-fulfillment; they were not forms of
compulsive repetition in search of gratification, but unwanted repetitions that wore
down the ego. It could sometimes be linked up with pleasure, but sometimes clearly
not.
In Beyond the Pleasure Principle (1920) and Civilization and its Discontents, written
10 years late, Freud considers a kind of destructiveness that seeks to destroy social
bonds, one that operates as a furtive vocation that seeks to dismantle the very project to
build social forms such as family, community, and nation, on the basis of aim-inhibited
social bonds.
xiii
We know that for Freud civilization produces unhappiness because
social norms demand that we not act on all the desires we may wish to gratify (for that
account we only need wish-fulfillment and it pretty much sums up Woody Allens
take on psychoanalysis). Ideally, aim-inhibited social bonds create communities, and
the sublimation of immediate desires creates artworks or institutions or works like
Freuds. At the same time, civilization, through the institution of the super-ego, seems
actively, if furtively, to be faulting and destroying what is built, pursuing a certain
furtive vocation repetitive, unknowing, and partially unintentional - that works in a
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contrary direction to its forward-oriented tasks and all conceits of progress. Freud ends
that text in the early 1930s remarking that civilization runs the risk of being undone by
its own aggression, even voicing his predictive anxiety about the prospect of
extermination at the end of that text.
xiv

Although Freud himself comes to posit sadism as the paradigmatic example of the
death drive, it is unclear whether sadism always operates with a mixture of pleasure
and destructiveness. And though we may consider that erotic or pleasurable forms of
sadism enter into punishment, even the death penalty, we may be missing the point
about aggression and destructiveness that first led Freud to posit the death drive. Its
destructiveness does not have to serve anyones pleasure, which is why we cannot
reduce the operation of the death drive in forms of punishment with erotic forms of
sadism.
xv
There are non-erotic forms that can prove to be more lethal than the erotic
ones, though, of course, not always.
xvi
In Freuds terms, the social demands to inhibit
pleasure under produces unhappiness, even neurosis, but the reflexive recircuiting of
the death drive against oneself is the production of conscience and guilt, which is the
function of the super-ego, understood as a more overarching critical agency. In other
words, it is not our pleasures that make us guilty, but something quite different [He
suggests that we can derive guilt from the aggressive instincts. when an instinctual trend
undergoes repression, its libidinal elements are turned into symptoms, and its aggressive
components into a sense of guilt. (CD,103)]
The death drive works through the super-ego, which means that it works to
destroy the one it punishes, acting as a kind of death penalty internal to the psyche.
The only possible way for the super-ego to fail in its destructive quest is for some
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narcissism to get in its way, some attachment to life and pleasure, some fear of feeling
pain, some self-preserving horror at the thought of ones own obliteration.
Derrida clear takes from both Nietzsche and Freud the primacy of cruelty,
though for Freud, cruelty may not be reducible to its festive version; Derrida seeks to
expose the way that abolitionists are invariably implicated in the death drive, which
makes them eligible for the charge of hypocrisy. This argument has a certain
intellectual appeal, even a kind of elegance; it operates by way of a dialectical inversion
that shows that imprisonment, the preferred alternative, is just a different form of
cruelty than the death penalty, one that is more protracted and more festive for the
punisher. And yet, I think the argument makes two consequential errors. In the first
case, it assumes that the only route to non-violence is through the violent suppression
of aggressive impulse, thus redoubling aggression in the form of a super-egoic and
moral instrument. But given that aggression can be interrupted by more relational
dispositions, why would not the opposition to the death penalty emerge from those
other kinds of desires? The pleasure principle intervenes to derail aggression time and
again, and we have seen that, for Freud, the death drive can be subordinated within the
service of the pleasure principle, and that pleasure can serve the purpose of creating
and reproducing social bonds. In the context of preserved social bonds, aggression can
become agonism, or it can be strictly contained within the rules of a game, whether a
sadomasochistic sexual scene or some other rule-bound activity. But the most general
argument is to be found in Freud. The idea of emotional ambivalence that constitutes a
chapter in Totem and Taboo, that emerges as a central explanatory feature of melancholia
in his essay on Mourning and Melancholia, and is there early on in his interpretations
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of Hamlet in the Interpretation of Dreams, is, after 1920, recast as a certain entanglement
between the pleasure principle and the death drive. There is no overcoming the
ambivalence in love, since we are always at risk of destroying what we are most
attached to and vulnerable to being destroyed by those upon whom we are most
dependent
xvii

So the problem with the dialectical inversion propounded by Derridas reading is
that it relies on the death drive, or its principle exponent, aggression, as the only motive
in the scene. And yet, what ethical decisions emerge precisely from the ambivalent
situation of, at the same time, wanting someone to die, and wanting that person to live,
and even wanting both with equal intensity, but within different levels of
consciousness? Ambivalence is not quite the same as hypocrisy; the latter assumes that
I really and truly, however furtively, want someone to die or to suffer endlessly, or am
possessed by murderous wish, even as that wish is cloaked and indirectly conveyed -
by a moral argument against the death penalty. It is hypocrisy only if there is one wish
that I pretend not to have but actually do have. In the condition of ambivalence,
however, there are at least two wishes or trends at work, two true motives struggling to
co-exist despite their incompatibility. What then works against the inner demand that
someone pay for a crime with his or her life? Is it only under conditions in which we
might enjoy protracted punishment that we endeavor that she or he should live?
Or are there other reasons why we might really want people to live? Are there,
even within the terms of psychoanalysis, reasons for wanting to keep the other alive
preserving my own life and those of others - that do not primarily rely on our wish to
continue torturing that other, even when it is not some singular other, but a more
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anonymous or general population? To answer that question, we have also to ask
whether there are social relations outside the terms of debt and payment, even outside
the logics of capital, contesting the psychic and moral terms by which that injury,
understood as debt, authorizes incarceration and even death? We have had to move
from a drive theory to an account of relationality at this moment, but that does not
mean that we can dispense so easily with the problem of destructiveness. After all,
when Freud posits Eros and Thanatos as two separate principles, as drives which, he
claims, is part of the figural language that is available to him, he is trying to take into
account how ambivalence can be theorized. Eros may well be defined as building social
bonds through sublimation, but love, we have to remember, is constituted by
ambivalence. Melanie Klein takes her cue precisely here, as you may well know,
suggesting that the ambivalence of all human bonds becomes the basis of an ethical
demand to preserve precisely the life it is in ones power to destroy, and sometimes also
in ones interest?
xviii
Indeed, for Klein, we preserve the one we might otherwise destroy
because of a prior dependency, a recognition that my own life is bound up with the
others life, and that there is no murder without a suicidal reverberation; there is no
destroying of the other that is implicitly a way of destroying myself and this not
because we are the same, but because even individuality is a social form. What emerges
paradoxically from a drive theory is a different account of the social bond that seeks to
preserve and repair a set of relations that present as all too readily destructible.
What implications does this constituting ambivalence in love have for a
consideration of the death penalty and for legal violence more generally? There is
haunting every ambivalence a question of conflicting wishes to preserve or destroy
17

what is living. We find this not just in individual psyches, but in social forms, since
ambivalence only makes sense in light of an ongoing and conflicted social bond. If we
accept this ambivalence, can we then presume a counter-trend to destructiveness that is
not just another one of its ruses?
Interestingly, both Derrida and Angela Davis draw attention to the toxic
intimacy between crime and its legal remedy. Legal violence distinguishes between
legitimate and illegitimate forms of the death penalty, establishing the procedures by
which that distinction is made. It also establishes the grounds by which the state can
inflict deadly violence either in war or through legal instruments like the death penalty.
Both Davis and Derrida called for the release of Mumia Abu-Jamal from prison and
from death row, calling him a political prisoner, arguing that his overarching crime
was his political affiliation with the Black Panthers. When the state kills, and justifies its
act through reason, it installs vengeance through its reasoning process, and legal
violence becomes indistinguishable from illegal violence, except that now the state
performs the act and supplies its justification (DP, 231). But for Angela Davis, the task
is to understand how imprisonment seeks to regulate and disenfranchise the
populations it targets, but also to move beyond vengeance.
I want to suggest that it matters that her teacher was Herbert Marcuse and that
the rejoinder he wrote to Civilization and its Discontents, namely, Eros and Civilization,
suggested that Eros might be expanded to create forms of community that would
counter the force of Thanatos, or the death drive augmented under capitalism into
forms of surplus aggression. For Marcuse, Freud was describing a very specific social
organization of aggression, not a pre-social death drive. In his pre-Foucaultian way,
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Marcuse also thought that revolutionary energy, as it were, could be marshaled against
repressive institutions, capitalism and the family included among them. For Davis, the
critical relation to the prison industry redirects what we might understand as
destructiveness against the institution itself, calling for the abolition of prisons. There is
no drive theory operative in her work, as far as I know, since both sexuality and
aggression are socially organized. At the same time, however, there is a clear
understanding that political resistance has to both build and destroy, and that there is
no way of getting around that double demand: on the one hand, there is a critical
potential, understood as the power of negation and, potentially, revolution, which calls
upon Marcuses effort to rewrite Freudian aggression as Hegelian negation.
In relation to the death penalty and carceral politics more generally, Davis calls
for the abolition, not only of the death penalty, but of the institution and industry of
imprisonment. The negation of exploitative and violent institutions makes strategic use
of destructiveness, but also seeks to establish and strengthen those social bonds that
would focus on repair rather than restitution.
If we stay within the psychoanalytic frame, we may wonder to what extent the death
drive, or aggression, can be fully directed by strategic political programs such as those
proposed by Davis. Is there not always an excess to destructiveness that cannot quite be
controlled or explained by the social organization of life? We destroy even what we do
not intend to destroy only because some operation of destructiveness is not fully
intentional. Yes, but is there an ethically significant distinction between understanding
social bonds within the civilizational framework or within other possible frameworks.
As even the impasse at the end of CD makes clear, civilization is hardly the answer he
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just cant find another. Civilization is responsible for the moral face of vengeance, and
prisons are its exemplary institutions. In its place, Davis imagines communities that
focus on forms of social responsibility distinct from responsibilization (that relies on
heightened forms of individualism) that forge new social bonds for those who may
have broken some of them, and that are explicitly anti-capitalist, formed in opposition
to capitalism, to the reproduction of a debtor class, and to racialized forms of
exploitation. In an essay on Marcuse, she writes, the challenge he presents is very
much a contemporary one, particularly with respect to the need to create a rupture
with the linguistic universe of the Establishment and its representation of crime and
criminals, which has helped to imprison almost two million people which has
facilitated the horrifying pattern of the prison as the major institution toward which
young black men and increasingly black women are headed.
xix

Perhaps we might find another exit from this closed economy of dialectical
inversion that conditions the charge of hypocrisy against the abolitionist. Even if those
who argue against the death penalty are implicated in the same forms of cruelty as
those who want it, testifying to an ineradicable dimension of cruelty in social and
psychic life, do they mobilize aggressive in different ways that are ethically significant?
If the alternative to the death penalty is not prison, what follows? If prison reform and
the death penalty are but two modalities of a death-driven political economy, what
follows? For Davis, abolitionism refers to the demand to abolish the death penalty and
prisons, but also to the abolition of slavery, since prisons have become the mechanism
by which a disproportionate number of people of color are deprived of citizenship.
In her view, both the enormous project of racial disenfranchisement undertaken
20

by the US prison system and the death penalty follow from, and continue, the history
of U.S. slavery. She points out that slaves were given the death penalty for 71 different
reasons. They were chattel that could be destroyed for disobedience and unprofitability.
And even after the emancipation of the slaves and the passing of the 13th, 14th, and
15th Amendments to the Constitution, imprisonment continues as a way of controlling
and humiliating a black population whose unpaid was required, and secured through
prison labour. The coerced labor of convicts during Reconstruction continues the basic
elements of slavery in every sense but its name. Indeed, as it was public instead of
private slavery, it was in some ways worse. It was a way of stealing labor again, and
the prison system became the supplier of that labor. For Davis, black men and women
worked under state terror to enable corporate profits. The peonage system that
succeeded slavery reproduced bondage through debt, facilitated by the notorious
Freedmens Bureau that arranged signed annual contracts with white planters, so that
workers would receive advances on the wages for subsistence that kept them in
permanent debt and de facto slavery.
xx

Davis has argued that the close ties that capital punishment has with the
institution of slavery should be considered in the contemporary abolition movement. In
the contemporary U.S. there are more than 3,500 people on death row in the U.S., all of
them poor and most of them African American or Latino
xxi
Most countries have
abolished the death penalty in law or practice, but the United States refuses, holding
firm to a policy that continues a legacy of violent racism. The fact that the death
penalty is disproportionately applied to people of color implies that it is a means of
regulating citizenship through other means, and, in the case of the death penalty,
21

concentrating state power over questions of life and death that differentially affect
minority populations.
In truth, the prison operates by forms of power that engage elements of
sovereignty, regulatory power, and profit, and where neo-liberal metrics are also clearly
at work. Models of sovereign power cannot explain the forms of power called racism,
even though state racism invokes sovereignty when the death penalty becomes its
instrument. And as prisons become increasingly outsourced, run by companies for
profit, demographic management becomes a profit-making activity, and the very idea
of rights of redress, due process, or prisoners rights falls out of the metric of value that
reigns. The death penalty brings into focus the power over life and death, but would
we be right to understand this power as exclusively sovereign? The regularory powers
that traffic in demographic distinctions between those whose rights of citizenship
should be protectes and those whose rights shall be regularly suspended engages a
specifically bio-political operation of racism. These forms of regulatory power that
differentiate between whose life counts and whose do not, especially on death row (this
form of effective differentiation is not necessarily the same as sovereign decision but has
a systematic and institutional character).
With this idea of a demographics of the condemned, related clearly to what
Achille Mbembe has understood as necropolitics, can we perhaps return to that
problem of counting with which we began? After all, it is past time to sum up. Who
and what is counted, and who becomes calculable, and for what purpose? Who
becomes part of anothers wealth and profit? And now, whose lives must be managed,
alternatively maintained or decimated, or maintained in destitution, within prison?
22

Have we finally arrived at the idea of a population who are discounted precisely as they
are counted and held accountable? And where is profit in this particular numbers
game? Security companies, having taken over the public administration of prisons,
expose the link between who is owned, who is put out of play, whose unpayable debt
now defines who they are, and who profits; they are perhaps regulating the death drive
when the people, the public, are established as those who must be protected from the
criminal class, regulated by security companies that profit from the expansion of its
business, profit from the expansion of a class with permanent and unpayable debts, for
whom debt names the social bond, and who suffer systematically induced precarity
that is spuriously renamed as crime. Where does debt forgiveness enter into this picture?
Would it be the operation of pardon as a de-institutionalizing force, including the de-
institutionalization of sovereignty? Perhaps the opposition to the death penalty has to
be linked with an opposition to modes of induced precarity both inside and outside the
prison, exposing those different mechanisms for decimating life, and forging another
form of sociality with all its ambivalence in play.





23




i
Germanic burial squads in the Middle Ages counted each corpse as a "head",
or caput, so the word came to mean "broken, wrecked, or unserviceable".
Charles Berlitz, Native Tongues, Grosset & Dunlap Publishers, New York, page 16-17.

ii
That head only becomes larger, only becomes, as it were, big-headed, if it can
be loaned out at a profit, producing a predictable and expanding zone of debt and
payment. If I have capital, then the heads I can count have become my head and I can
then loan out my head at a profit, (which is, oddly enough, something many of us
actually do when asked to speak for a reasonable fee). So the multiple heads become
one which then dismembers itself again in the form of a loan.

iii
Debt and enslavement.
iv
Capital Punishment is first found in Blackstone in 1765, just 11 years before
the publication of Smiths Wealth of Nations, and 10 before Benthams discussion of the
utility of capital punishment in Rationales of Punishment (1775).
iv
That last text detailed
forms of torture, including the hanging and public exposure of the retrained head and
buttocks, forms of public humiliation designed to inflict sufficient pain to deter the
prisoner from recommitting his crime. Perhaps we can say, without too much of a leap,
that the head, as figure for a countable value, if not the calculability of value itself, is
also precisely what remains finally, if not fatally, under the power of the sovereign,
suggesting that the threat of capital punishment, which is, originally, the forcible
24


removal of the head of the person found guilty of a crime, is precisely the prerogative of
the sovereign.

v
We might be tempted to say that money is the mode of this equivalence, following Marx
who made clear that the money-form and the relation between creditor and debtor does
have the form of a money-relation was only the reflection of an antagonism which lay
deeper, at the level of the economic conditions of existence. (233) But that means that the
head, itself an abstraction and condensation, has become subject to a second-order form of
abstraction and condensation, and that is called money. The head, as principle part, is
already on the way to becoming money as the body becomes contracted into its principle part
and then altogether effaced by monetary equivalence. The body is increasingly remaindered,
and with it the labor theory of value, as money establishes its own system of equivalences.
vi
Derrida on the redoubling of interest.
vii
Accountability, on this model, is secured through wielding a scalding
instrument of torture on oneself a calculus of torture that would bring us back to
Bentham or might bring us back on another occasion. The unpayable debt becomes a
perverse window onto a hellish eternity, always and never paying, effectively identical
with the foreclosure of a futurity itself.

viii
Indeed, the move to cast injury as debt that requires restitution produces the
psychic modalities of both guilt and sadism; Both subjects are organized psychically in
relation to punishment and pleasure. The creditor, and his demands for legal
enforcement for his contract, acquire the status of sadism. The idea of equivalence,
introduced first by jus talionis, allows one thing to substitute for one another by way of
restitution.

25


ix
Derrida, on Kants hypocritical cruelty, 148.
x
Hamacher, promising
xi
Those who oppose the death penalty, are they perhaps seeking to eradicate the death drive
is that their furtive purpose? The death drive is briefly summarized as the hostility to life
[that] is inherent to life itself.
xii
Just as Nietzsche found the categorical imperative of Kant to be reeking of
cruelty and soaked in blood, so Freud thought that the Christian dictum, love they
neighbor as thyself was pretty much impossible to realize. Freud remarks, why
should my neighbor love me? And why should I love my neighbor? it is very probable
that my neighbor, when he is enjoined to love me as himself, will answer exactly as I
have done and will repel me for the same reasons. (CD, 68) Freud suggests that we
can only really love those whom we know and that it is absurd to ask us to love all the
rest of humankind.
And yet, how do we explain this hostility toward life in life?
xiii
Although in several textual instances, Freud remarks that we generally find
the pleasure principle and the death drive working in tandem, especially when
considering the ambivalence understood to be constitutive of love, they still call to be
distinguished in terms of their final aims. In Beyond the Pleasure Principle, the death
drive is explained through the example of sadism, and by the time he returns to the
topic in 1930, sadism is understood as the paradigmatic example of the death drive.
And it opens the way for an understanding of what he calls aggression as a
derivation of the death drive. It is interesting that in BPP he makes two inverse kinds
of claims about the relation of pleasure and the death drive; in the first instance, he
26


gives the example of sadism in which the death drive enters into the service of the
sexual function(BPP, 65); but in the second instance, just pages later, the pleasure
principle seems actually to serve the death instincts[they are] especially on guard
against increases of stimulation from within, which would make the task of living more
difficult. (77) So each can be at the service of the other, which means that neither is
necessarily primary. The death drive leads us toward death on our own time, and that
this circuitous return to the inorganic militates against a progressive sense of time,
repetitively taking apart those social relations we build, and returns us to a state of
quiescence which, oddly enough, was the first stated aim of the principle as well. So
the two drives, or principles, as you wish, seem to meet up again in this final quiescence
in which all that is built is undone, scattered, returning the fading ego to an inorganic
condition that finally relieves the organism of all excitation.

xiv
In Freuds terms, the social demands to inhibit pleasure under produces
unhappiness, even neurosis, but the reflexive recircuiting of the death drive against
oneself is the production of conscience and guilt, which is the function of the super-ego,
understood as a more overarching agency. In other words, it is not our pleasures that
make us guilty, but something quite different. The death drive works through the
super-ego, which means that it works to destroy the one it punishes, acting as a kind of
death penalty internal to the psyche. The only possible way for the super-ego to fail in
its destructive quest is for some narcissism to get in its way, some attachment to life and
pleasure, some fear of feeling pain, some horror at the thought of ones own
27


obliteration. So, oddly, the super-ego depends upon narcissism to keep its subject alive.
And if it tortures its subject while it is alive, keeping its subject alive for the apparently
delightful purpose of continuing that torture, then it acts, we might say, as a psychic
abolitionist, refusing to kill the self it would rather keep alive to torture endlessly. It is
interesting that so many enlightenment thinkers, including Kant, condemn suicide as an
act of self-love, when self-love may well be, according to Freud, what checks suicide.

xv
Here I differ from Derridas reading of Freud, according to which, erotic sadism
is merely a death drive detached from the ego by the narcissistic libido, which
can be directed only at the objectamorous possession tends toward cruel
destruction of the object

xvi
[If we read Derridas views in relation to Freud, we find that a brief passage in
CD is quite important to him. Freud is writing about the death penalty: one is
irresistibly reminded of an incident in the French Chamber when capital punishment
was being debated [I take it that this is the 1790s]. A member had been passionately
supporting its abolition and his speech was being received with tumultuous applause,
when a voice from the hall called out, Que messieurs les assassins commencent! It
was as if the call for assassination to begin emerged precisely from the passions aroused
by the abolitionist discourse.

xvii
. [According to this later model, Oedipus does not necessarily kill the father in order
to have the mother (that would be to posit wish-fulfillment as the final aim of all
28


murderous wish), but he seems to be moved by separate unconscious motives in killing
the father, and sexual gratification may or may not be among them.]

xviii
Melanie Klein
xix

http://pages.gseis.ucla.edu/faculty/kellner/Illumina%20Folder/Angela_Davis%5B1%5D%5B1%5D.pd
f
xx
Generally penniless, they obtained advances on their wages or shares of the crop. Since they were
illiterate, the planters often overcharged and cheated them. The result was perpetual debt, compulsion,
violence, oppression, and de facto slavery. The murder of black peons was a frequent occurrence in the
1940s.

xxixxi
, according to the NAARPR (National Alliance Against Racist and Political
Repression She insists that in the United States, both prisons and the death penalty have
to be understood as part of the ongoing legacy of slavery, if not slavery by other means.
And that the movement to abolish slavery has to be rethought in light of the current
movement to abolish both prisons and the death penalty.
)