Affective Police Reform 1AC/1NC

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Death Penalty

Abolishment of the death penalty is incomplete without addressing the larger structure of neoliberal governmentality that can now exercise power through the decision to let live or die within criminal practices.

Sitze 9 (Adam Sitze is assistant professor of law, jurisprudence and social thought at Amherst College, “Capital Punishment as a Problem for the Philosophy of Law”, The New Centennial Review , fall 2009, Vol. 9, No. 2 (fall 2009), pp. 252-254 Published by: Michigan State University Press)

Norberto Bobbio has argued that debate over the death penalty must be limited to "the question of whether it is morally and/or juridically permis- sible for the state to kill in order to punish, even with all the procedural guarantees of a constitutional state" (1996 [1990], 143-44). Yet if poena capi- talis is the impossible but necessary paradigm with reference to which the modern theory of the death penalty struggles to attain its coherence and integrity, then a limitation of Bobbios type will not only foreclose upon our understanding of the genesis and basis of the death penalty itself, but will also foreclose upon our understanding of the way that abolitionism carries within itself a silent affirmation of the very practice it wants to ban, thus enabling the death penalty to survive its own elimination. Look again at Foucaulťs argument about the conditions under which death penalty aboli- tionism emerged. Writing in 1976, Foucault argued that "[a] s soon as power gave itself the function of administering life, its reason for being and the logic of its exercise- and not the awakening of humanitarian feelings- made it more and more difficult to apply the death penalty. How could power exercise its highest prerogative by putting people to death, when its main role was to ensure, sustain, and multiply life, to put this life in order?" (1978 [1976], 136). Under these conditions, Foucault argued, "the ancient right to take life or let live was replaced by a power to make live or to cast out into death [de re- jeter dans la mort]" (1978 [1976], 138). As Esposito warns (2002, 162), it would be a mistake to adopt a mechanical interpretation of Foucaulťs argument about the "various forms" of the state's right to kill in a mechanical way, as if "taking life" and "letting die" were mutually exclusive (and, indeed, Foucault elsewhere argued that "letting die" did not "replace" but "complemented" the right of the sword [2003 {1997}, 241]). But if we frame the debate over the death penalty in the way that Bobbio recommends, we’re bound to make just this mistake, only in reverse. in reverse. We'll find ourselves in a position where we owe our very ability to question and criticize the death penalty to the emergence and even dominance of a biopolitical problematic, yet where we remain unable to speak to the form of state killing (or "thanatopolitics") that is coeval with and specific to biopolitics (the sovereign power to let die). It is unclear, however, why we would want abolitionism to remain silent on this mode of state killing, this "indirect murder" (Foucault 2003 [1997], 256) that is so normal a state of affairs within neoliberal governmentality. What would we gain by criticizing capital punishment while also consenting, in and through our silence, to the practice of poena capitalis that is specific to the biopolitical epoch? What would be the point of the weed only to leave its root intact? Why would we want abolitionism, this plainly biopolitical discourse, to resist taking its own premises to their logical conclusion?9 Against Bobbios framing of the debate, let us therefore maintain that poena capitalis is more than just an arcane and abstract concept from Roman Law. Let us entertain the hypothesis that it is the very root of the state’s right to kill- what we might call, varying Goodrich (2003, 212), its ju- ridical unconscious . On this read, poena capitalis is not only the example that silently governs the way the state wants (but fails) to exercise to its power to take life. It is also the paradigm according to which the state exercises (while also disavowing) its power to let die.

The attempt to abolish the death penalty cedes justice and power to the prison regime as the determiner of bodies. This creates a separation of humanity and life that allows for the interpersonal thought of disposal and punishment.

Sitze 9 (Adam Sitze is assistant professor of law, jurisprudence and social thought at Amherst College, “Capital Punishment as a Problem for the Philosophy of Law”, The New Centennial Review , fall 2009, Vol. 9, No. 2 (fall 2009), pp. 246-248 Published by: Michigan State University Press)

If, however, we push this demonic reading just a bit further, we become capable of a much different way to understand "In the Penal Colony," one that is no less paradoxical but far less tortuous. It emerges once we pose our very relation to Kafka's text- our reading or, better, our inability to read- as a problem for the philosophy of law (as a chance, that is to say, to critical inquire into the horizons of our own juridical experience). On these terms, it becomes possible to see that our relation to the neutral narrative voice that emerges in the concluding passages of Kafka's text poses, in the form of a hermeneutic predicament, the same question we will need to think through if we are to undo, rather than repeat, the schism between person and liv- ing being that governs the two exemplary modern theories of the death penalty. This is because the way in which the anonymous voice in Kafka's text resists our reading is precisely the way in which "life" manifests itself when we attempt to render it intelligible within the regime of the person, and because the attributes of our hermeneutic experience at this instant - the impasses and enigmas that force themselves upon our reading, the collapse of disinterested interest into an immanent relation of inter-esse , our desire to achieve hermeneutic certainty and security within a textual space that seems specifically designed to exclude both- are the same attributes of our biopolitical experience under conditions where, on the one hand, life is the highest good, yet where, on the other, the rights of the person seem to be more unquestionable than ever. Put simply, the "machine" in which we find ourselves when we read Kafka's text is the same machine that informs and governs the debate over the death penalty today: the dispositif of the person. There are certainly in Kafka's text a couple of bad ways to attempt the deactivation of this dispositif. The Officer personifies an attempt to deacti- vate the machine by subjecting his life to a "correct" representation of the illegible imperative that governs it: he seeks "to do justice" to life or "to get life right," and his equivocal death is the inescapable result of this desire. The Traveler, by contrast, accepts the impossibility of "correctly" representing life, but only then in order to attempt to secure himself against that impossibil- ity, to achieve freedom from the trap of constitutively unjust representation simply by casting off from the space of literature once and for all (as if we could resolve the problem of unreadability simply by ceasing to read). But there is also a third relation at work in "In the Penal Colony": Kafka's rede- ployment of the third person as the impersonal. This redeployment is not, of course, a "merely" literary device. As Esposito has argued, the impersonal is coextensive with the field of biopolitics more generally, and even presents us with a mode of life in relation to which we become able to think through an affirmative biopolitics (2010b, §5). This is because in Kafkas use of the impersonal we find a way to think about the relation between person and living being that does not presuppose, as its premise, the necessity of reca- pitulating the separation of person and living being. The inescapable errancy that is forced upon us by Kafkas use of the neutral, anonymous narrator at the close of "In the Penal Colony" is neither an "absence" of personality (a life lacking the mask of the person) nor a simple "failure" of representation- it is not, in other words, a problem that can be "solved" through better and better procedures of accuracy, security, and certainty (or what Heidegger would call Sichereit). It is simply a form of life that coincides completely with its own mode of expression. Because of this complete coincidence of essence and mode (which is not the same as complete self-identity, because it is precisely the absence of any identity or self), the impersonal is constitutively incapable of relating to part of itself as a "thing" that is at the disposal of another of its parts. And this, in turn, has an important implication for the debate over the death penalty as it is today conducted. The impersonal is that form of life in which there is no point of leverage for the depersonalization that is the necessary condition for Kant's justification of the death penalty.

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