The Ethics of Capital Punishment and a Law of Affective Enchantment

Abstract

This paper re-reads American Appellate and Supreme Court rulings about the constitutionality of execution by electrocution from the perspective of new materialism. Using the case of Provenzano v. Moore, this paper highlights how the existing jurisprudence develops a notion of cruelty that deliberately avoids the sensual and affective dimensions of punishment. Given the profoundly corporeal nature of punishment and even more so capital punishment, any consideration of the ethics of punitive practice must meaningfully engage with the body, its situatedness, and its material networks, all of which enact punishment as a social phenomenon. Employing Jane Bennett's ethics of affective enchantment, grounded in the ethico-onto-epistemology of new materialist thinkers, this paper critiques the majority opinion in Provenzano by demonstrating how it feeds into modern disenchantment. It then draws on Provenzano's landmark dissent to show how ethical practice stems from deliberately opening oneself up to the wonderment of an entangled world produced through the acknowledgement of nonhuman selves and plastic bodies. This has the potential to generate an understanding of ‘humane’ punishment that better, and more meaningfully accounts for how human beings relate to and engage with the world around them.