Executing Sentences in Lolita and the Law
Or, to ask a related question, is there any sense in pronouncing a sentence that may never be executed? Nabokov's novel has anticipated this inquiry by consistently exploring the differences between speech and action. Lolita concentrates on two forms of ambiguous discourse, the obscenity and the confession; it recounts Humbert's ludicrous attempts at sentencing, which utterly fail as performative declarations; and, finally, it prompts readers to find a verdict and determine a sentence themselves, even though no sentence can be enacted. Lolita is a work of fiction, however. The imposition and administration of sentences in an actual legal system is another matter--but not entirely, since real criminal cases also involve speech acts, texts, stories, and "that quasi-literary genre, the judicial opinion" (Petrey, 1990, p. 186). Indeed, a capital sentence that is never performed, while it may have other palpable effects, can seem as rhetorical and essentially conceptual as the end of Nabokov's novel.
Sentencing dramatizes the tension between words and deeds at the heart of American criminal law. The inherent "violence of the act of sentencing," Cover explains, "is most obvious when observed from the defendant's perspective" (1992, p. 212). Timothy Kaufman-Osborn notes that "sentence can be employed as a noun but also as a transitive verb" (2003, p. 36). Scarry points out, more precisely, that in a criminal trial each of the state's speech acts
becomes a verb that acts on the defendant. An accusation is made and the defendant becomes the accused. A verdict is reached and the defendant becomes the verdicted, or, as we more often say, the convicted. A sentence is announced and the defendant is sentenced. To be sentenced, to be physically punished, is to be directly acted on by a verbal sentence, a connection that calls to mind the etymological kinship between "sentence" and "sentience." (1996, pp. 166-67)Although Scarry's analysis of the verbal force of state utterances is persuasive, it elides a crucial distinction between two phrases that she assumes are equivalent: "to be sentenced" and "to be physically punished." In capital cases, in particular, someone condemned to death may never be "physically punished"--or at least, not by execution. Even if death does occur, it is seldom "directly." As Petrey observes, one cannot necessarily "demarcate certain deaths from a jury's classically performative 'We find the defendant guilty' and a judge's equally classic 'I sentence you to be hanged by the neck until dead.'" Nevertheless, even if death does not always follow, condemning someone to death remains "a speech act that can't be convincingly separated from the events it authorizes" (1999, pp. 18-19). Both legally and linguistically, death sentences are beset by problems of performativity.
This ambiguous relationship between sentencing and punishment haunts recent analyses of the death penalty by Robert Cover, Austin Sarat, and Timothy Kaufman-Osborn. Cover's essay, "The Violence of the Word," has influenced many subsequent studies of legal rhetoric.31 Although the law generally "considers words to be deeds and construes utterances as acts" (Hollander, 1996, p. 178), Cover argues that it tries to distinguish between speech and action where punishment is concerned:
We have rigidly separated the act of interpretation--of understanding what ought to be done--from the carrying out of this "ought to be done" through violence. At the same time we have, at least in the criminal law, rigidly linked the carrying out of judicial orders to the act of judicial interpretation by relatively inflexible hierarchies of judicial utterances and firm obligations on the part of penal officials to heed them. Judges are both separated from, and inextricably linked to, the acts they authorize. (1992, p. 235)Accordingly, he describes sentences as "performative utterances in an institutional setting for violent behavior" that are enacted by other individuals: "The judicial interpretive act in sentencing issues in a deed--the actual performance of the violence of punishment upon a defendant. But these two--judicial word and punitive deed--are connected only by the social cooperation of many others" (p. 212, n. 4; p. 227).32 The interconnections among words, deeds, and roles become more complex in the case of the death penalty--"the most profound act of sentencing," even though its grammar "is as simple as that of any other criminal sentence" (Cover, 1986, p. 8). As judicial opinion or as performative declaration, this sentence is unique because it sets "in motion the acts of others which will in the normal course of events end with someone killing the convicted defendant" (Cover, 1992, p. 229). The judge, however, neither witnesses nor participates in the execution. Such separation of word from deed is crucial, Cover argues, because "it means that someone else will have the duty and opportunity to pass upon what the judge has done" (p. 234). He points out, in fact, that in capital cases, precisely because the deed "is extreme and irrevocable, there is pressure placed on the word--the interpretation that establishes the legal justification for the act" (p. 230).
Sarat suggests, in When the State Kills, that this disjunction also applies to jurors in capital cases: "those who authorize violence, in this case the death penalty, do not themselves carry out the deed that their verdict allows. The juror is asked only to say the words that will activate a process that at some considerable remove may lead to death" (2001, pp. 134-35). But whereas Cover claims that judges remain "intensely aware of the deed their words authorize," even if they do not attend or enact it (1992, p. 229), Sarat argues that the gap between sentence and execution allows jurors to evade the implications of their words. If jurors understood their speech's performativity, they might be less likely to announce a guilty verdict: "Were they required to witness the full consequences of their verdict or were they required to pull the switch on those they condemn to death, the law would find it radically more difficult to get their authorization to kill" (2001, p. 135). When Sarat interviewed jurors in capital cases, however, he discovered that they "knew, or at least believed, that their decision was not the last word" (p. 145).
In his book From Noose to Needle, Kaufman-Osborn argues "that word and deed, imposition and infliction, sentence and execution, cannot be separated quite so neatly" as judges and juries imagine (2003, p. 22). Unlike Cover, he rejects "any account of the interconnection between sentence and execution that is parasitic on an untenable distinction between word and deed, a distinction that serves all too well the interest of the judiciary" (p. 23). Instead, Kaufman-Osborn claims that imposing the death penalty is inseparable from administering it, because the announcement already presupposes and justifies the execution. He argues that death sentences not only occur in an institution that practices violence, as Cover suggests, but that their force derives directly from "the institution of capital punishment, that is, the network of practices that encompasses judge as well as executioner and, indeed, the larger structure of domination in which that institution is embedded and by which it is authorized" (p. 27). This structure is inherently self-justifying.33 Whereas Cover considers the social roles linking sentence to execution a safeguard that allows due deliberation, Kaufman-Osborn, like Sarat, sees them as diffusing individual responsibility:
At the imposition end, prosecutors represent themselves as agents who seek but do not determine the death sentence, jurors represent themselves as citizens who simply do what the law requires, judges represent themselves as officials who merely do the bidding of jurors, and all know that their efforts are merely provisional given the state and federal appeals that invariably follow any given death sentence's pronouncement. (p. 21)Kaufman-Osborn claims, too, that in capital cases the defendant's sentencing and subsequent incarceration are part of his punishment.34 Given that "imprisonment on death row is a sort of living death that culminates in, but is not neatly distinguishable from, the act of execution proper, then in some important sense the pronouncement of a death sentence is itself an act of violence and the speaker of that sentence, a judge, is its agent" (p. 16). In this sense, execution begins at the moment of sentencing. As a performative utterance, then, the death sentence "is not merely continuous with but also partly constitutive of" the defendant's death (p. 35).
Although Kaufman-Osborn studies the knotty relationship between a death sentence and its execution--both in literal and linguistic terms--he doesn't address those instances in which it is never carried out. But what happens when an execution is endlessly delayed, protracted, or made increasingly unlikely? This essay's epigraph from Alice sums up the situation: although the Queen condemns Alice to death in an unambiguous, even imperious way--"Off with her head!"--her performative declaration has no effect. What does it mean when an authorized individual utters a death sentence, but "nobody move[s]" (Dodgson, 1886/1960, p. 161)?
Invitation to a Beheading, another novel by Nabokov, answers that question by describing an unconsummated sentence from the defendant's perspective. This dystopian fantasy, which concerns a man condemned to death for "gnostical turpitude" in a world where everyone else is shallow and unthinking (1938/1959, p. 72), begins with his sentencing:
In accordance with the law the death sentence was announced to Cincinnatus C. in a whisper. All rose, exchanging smiles. The hoary judge put his mouth close to his ear, panted for a moment, made the announcement, and slowly moved away. (p. 11)The plot recounts Cincinnatus's torment as he awaits his execution and attempts to learn when it will occur. He tries to express his thoughts in writing, like Humbert, but mostly produces incomplete statements such as "In spite of everything I am comparatively" (p. 12). Although these unfinished sentences result from the state's interruptions and annoyances, they also reflect the agony of not knowing when or if he will be put to death.35 Cincinnatus is further harassed by the cruel jokes and coy attentions of a prisoner in the next cell, who eventually turns out to be "the performer of the execution" (p. 176). His executioner, in fact, seeks to create an "atmosphere of warm camaraderie between the sentenced and the executor of the sentence"--rather than "the barbarity of long-gone days, when these two, not knowing each other at all, strangers to each other, but bound together by implacable law, met face to face only at the last instant" (p. 173). This grotesque relationship subverts those social roles that usually mediate between word and deed, according to Cover, and that make an execution seem impartial, even impersonal.
In Invitation to a Beheading, however--as in many actual cases--the execution never takes place. At the novel's end, after Cincinnatus has taken off his shirt, arranged himself on the chopping block, and waited for the axe to fall, he realizes that the world is disintegrating.36 Despite the entreaties of the executioner's assistants, he climbs down from the scaffold and, in the final sentence, "amidst the dust, and the falling things, and the flapping scenery," makes "his way in that direction where, to judge by the voices, [stand] beings akin to him" (p. 223). Whereas Lolita dissolves its fictive world before the announcement of verdict or sentence in a criminal trial, Invitation to a Beheading does so after the defendant is found guilty and condemned to death, but before he is killed. Cincinnatus's death sentence seems to remain merely a rhetorical statement, an unheeded command in the subjunctive mood, or a proposed future performance that can still be postponed--or better yet, skipped altogether, as the title's allusion to an "invitation" implies.
Linguistic philosophers and analysts of legal rhetoric have also speculated on the significance of unexecuted sentences. Fittingly, Austin calls such declarations--produced by authorized speakers under appropriate circumstances, yet not carried out--"misexecutions" or "non-executions," depending on whether their performance is somehow flawed or simply incomplete (p. 18, pp. 35-36).37 Alice illustrates both linguistic and literal "misexecution" when the royal headsman is ordered to behead the Cheshire Cat (a creature who keeps progressively appearing and disappearing), but cannot figure out how to do it since only the Cat's head is visible.38 Invitation to a Beheading exemplifies "non-execution," because the imaginary world ends before Cincinnatus's death sentence can be administered. To apply Austin's analysis to actual death sentences, one might imagine an appeal on the grounds that a defendant did not receive due process--making the initial sentence a case of misexecution. If this appeal prevented death from ever taking place, the sentence would become an instance of non-execution.
The legal scholars cited in this essay are divided on the implications of actual misexecutions and non-executions. Cover acknowledges in passing that sentences might not be enacted--"The judicial word is a mandate for the deeds of others. Were that not the case, the practical objectives of the deliberative process could be achieved, if at all, only through more indirect and risky means" (1992, p. 216)--and cites one judge who sentenced a defendant to time served because of doubts about the legal system's integrity.39 Sarat implies that the failure to enact sentences leads to cynicism and bad faith. The government may seek speedy executions, he explains, because "a state unable to execute those it condemns to die would seem too impotent to carry out almost any policy whatsoever" (2001, p. 18). Jurors, meanwhile, may assume that capital sentences result in life on death row rather than death (pp. 147-149); as one said, "Just because someone is sentenced to the death penalty doesn't mean he'll ever die" (as cited in Sarat, 2001, p. 150). Once Kaufman-Osborn has defined a death sentence's utterance as continuous with its execution, he doesn't speculate about those instances--presently the rule rather than the exception--when it is never carried out. He observes, however, that if the death sentence is not consistently enacted, then "its power to do what it says is more contingent, less unilateral, than we usually assume" (2003, p. 44).
Indeed, the fact that guilty verdicts in capital cases usually lead to misexecutions and non-executions suggests that the death sentence itself is frankly untenable. A legal system in which individuals are condemned to death, but nobody moves, evokes either Wonderland or the bleak nowhere of Invitation to a Beheading. It also recalls the nightmarish situation of the Cold War, which produced hyperbolic, hypothetical, presumably (and yet never completely) fictitious scenarios of extreme, irrevocable, absolute death for which no one was clearly responsible. In a more just system, individuals would only receive sentences that could be actually be administered and, if necessary, revoked. In such a system, judges and juries would not need to shy away from contemplating the deeds sanctioned by their words.
As long as death sentences are imposed, however, anyone who is authorized to utter or enact them--or who authorizes others to do so, on her behalf--must accept responsibility for them. Nabokov makes his readers acknowledge such responsibility, in Lolita, by prompting them to find a verdict and pronounce a sentence even though no sentence can be carried out. His readers determine the final judgment--a dénouement that demonstrates the ultimate performativity of fiction. Works of literature, after all, are "quasi-speech-acts" that "require readers to give the substance of fully operative conventions to language that lacks it" (Petrey, 1990, p. 72). Readers, in effect, execute a novel's sentences by enacting them in their imaginations. In Lolita and Invitation to a Beheading, readers must even provide the assessment of the protagonist's case that is withheld by the text. In Invitation to a Beheading, for example, the last sentence--in which Cincinnatus moves toward other beings who are, "to judge by the voices, [. . .] akin to him" (1938/1959, p. 223)--not only alludes to the process of evaluating evidence and arriving at judgment, but hints that he is about to encounter his true peers, the novel's readers, who will assess his story fairly. It doesn't matter that the novel is over, and that even within its imaginary world it would now be impossible to either behead Cincinnatus or pardon him. Pronouncing a sentence still matters, whether or not it can be carried out--just as receiving the death penalty remains an extreme form of punishment, even if the execution never takes place.40
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31. To represent Cover's position, I cite both his initial lecture on "The Bonds of Constitutional Interpretation" (1986) and its eventual revision as his essay on "Violence and the Word" (1992).
32. The necessary actors include "police, jailors or other enforcers who will restrain the prisoner (or set him free subject to effective conditions for future restraint) upon the order of the judge, and guards who will secure the prisoner from rescue and who will protect the judge, prosecutors, witnesses and jailors from revenge" (Cover, 1992, p. 225).
33. See Butler: "The performative speaking of the law, an 'utterance' that is most often within legal discourse inscribed in a book of laws, works only by reworking a set of already operative constraints. And these conventions are grounded in no other legitimating authority than the echo-chain of their own reinvocation" (1993, p. 107; as cited in Kaufman-Osborn, 2003, p. 29).
34. Kaufman-Osborn describes Clarence Lackey's unsuccessful appeal of his death sentence on the grounds that he had already been punished by imprisonment on death row; since then, similar appeals have been called "Lackey claims" (2003, pp. 13-16).
35. At one point, Cincinnatus tears up a pile of apparently meaningless bureaucratic documents, only to learn that "Perhaps there was a pardon in there"; he gathers the scraps and attempts "to reconstruct at least one coherent sentence, but everything was mixed up, distorted, disjointed" (Nabokov, 1938/1959, p. 38). Trying to distract himself with a book, he keeps "reading the first sentence over and over" (p. 87). He repeatedly asks to finish his writing and have it preserved:
Save these jottings--I do not know whom I ask, but save these jottings--I assure you that such a law exists, look it up, you will see! [. . .] my last wish-how can you not grant it? I must have at least the theoretical possibility of having a reader (p. 194).Shortly before his beheading, he writes:
"But now, when I am hardened, when I am almost fearless of . . ." Here the page ended, and Cincinnatus realized that he was out of paper. However he managed to dig up one more sheet. ". . . death," he wrote on it, continuing his sentence, but he immediately crossed out that word; he must say it differently, with greater precision." (pp. 205-206)He is interrupted once more--leaving behind a "blank sheet with only the one solitary word on it, and that one crossed out"--and led to his execution, which will be broken off as well (p. 206).
36. Like Bend Sinister, Invitation to a Beheading ends with a deus ex machina whereby Nabokov intercedes to rescue his doomed hero. Cincinnatus's escape does not reflect his unreliable perceptions, however (as in Bierce's "An Occurrence at Owl Creek Bridge" or Borges's "The Secret Miracle"), but the tale's essential unreality. Its ending thus evokes Alice once again: threatened with decapitation, Dodgson's heroine finds that she has regained her full size and that the other characters, scattering through the air and "flying down upon her," are "nothing but a pack of cards" (1860/1966, p. 165).
37. See Gould, who applies the terms "illocutionary suspense" and "perlocutionary delay" to authorized utterances that are not enacted because other parties reject their premises (1990, p. 31).
38. Dodgson wittily conveys the difficulties of executing such a performative declaration:
The executioner's argument was, that you couldn't cut off a head unless there was a body to cut it off from: that he had never had to do such a thing before, and wasn't going to begin at his time of life. The King's argument was, that anything that had a head could be beheaded, and that you weren't to talk nonsense. The Queen's argument was that, if something wasn't done about it in less than no time, she'd have everybody executed, all round. (It was this last remark that had made the whole party look so grave and anxious.)At length the Cat disappears entirely, so the execution never takes place (1866/1960, pp. 116-117).
39. Sentencing "to time served" is also problematic. How can a statement command an action that is not only already being performed but, by the terms of that same statement, has now been completed?
40. This essay is dedicated to the memory of my father, who graduated from Harvard Law School but never practiced law. I want to thank my fellow participants in a 2002 NEH summer faculty seminar on "Punishment, Politics, and Culture," and especially Austin Sarat, the director, without whom this essay would have been neither conceived nor executed.
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