Kenneth Lay, the former head of Enron and the great sacrificial figure of American corporate corruption of the late 20th century, has died on the eve of sentencing after conviction of securities fraud. It is possible that, a s a result of the timing of his death, Lay’s conviction will be erased, substantially complicating the government’s efforts to recover millions of dollars from Lay (Greg Farrell, Elliot Blair Smith and Edward Iwata, “Lay’s Death has Legal Ramifications,” USA Today, July 6, 2006 at 1B).
Lay’s death brought a measure of frustration to his survivors. In particular, some of the people who felt that he had a hand in the destruction of Enron regretted that his death made it impossible for him to face punishment in life. Prosecutors and others were concerned that the somewhat exquisite timing of his death might have the effect of denying the State a formal judgment. Id. What has emerged is a strong sense that death was too good for Mr. Lay, and that he should have been required to endure a bit more on Earth before passing on the ultimate judgment.
What was most striking about this set of reactions was its similarity to the reactions on the death of Slobodan Milosevich, the former President of Serbia on the eve of the end of his trial in The Hague on charges of crimes against humanity. Again, the sense was that death robbed people of the satisfaction of punishment.
Both sets of reactions, so similar in many ways, remind us of the peculiar relationship between punishment and those with the power to punish. It suggests how little human societal desire has progressed since the late medieval period. Though much maligned, Michel Foucault probably provides the greatest commentary on this lust for the drama of punishment (Michel Foucault. 1975. Discipline and Punish: The Birth of the Prison, Paris, Editions Gallimard. Trans. Alan Sheridan, 1977 (Vantage Books)).
The desire to exact punishment on the body of the person identified for punishment serves a number of important social purposes the least importance of which is concerned with the particular individual on whom punishment is to be exacted. In the pre-Enlightenment period, Foucault suggests that “The public execution is to be understood not only as a judicial, but also as a political ritual. It belongs, even in minor cases, to the ceremonies by which power is manifested.” (Foucault, supra, at 47). But Foucault reminds us that global society no longer focuses on the rituals of torture and justice meted on the body of the condemned. Rationality and social husbanding has reformulated the rituals of disciplining behavior and the character and nature of the ritual of punishment. “In the old system, the body of the condemned man became the king’s property, on which the sovereign left his mark and brought down the effects of his power. Now he will be rather the property of society, the object of collective and useful appropriation.” (Id., at 109). In the case of both Lay and Milosevich, though, one sees both the value of each man as a proxy for the great social wrongs for which each serves as proxy. I have written about this in the context of the construction of modern international law. See Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State International Law Review 509 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=410460. But one also feels a bit of the old notion—the need to assert a power over the very body of the condemned, this time by the “people” rather than an individual sovereign.
Foucault reminds us that these ostensibly psychological considerations are intimately tied to law. Law supplies the framework through which the rituals of punishment, and the social control tied to it, are organized. “The law is reformed: it takes up its place on the side of the crime that violated it. The criminal, on the other hand, is detached from society, he leaves it. . . . The society that has rediscovered its laws has lost the citizen who violated them. Public punishment must manifest this double affliction: that a citizen should have been capable of ignoring the law and that one should have been obliged to separate oneself from a citizen.” (Foucault, supra, at 110). This separation is described as a ceremony of mourning. “Posters, placards, signs, symbols must be distributed, so that everyone may learn their significations. The publicity of punishment must not have the physical effect of terror; it must open up a book to be read.” (Id., at 111). And so the investigation, arrest, and confinement of both men served critical ritual purposes—recalling the crime, publicizing the law, teaching the sovereign’s interpretation of that law, demonstrating the need for punishment, deepening that understanding through the parade of victims, and justifying the penalty sought in the narratives of criminality that are widely disseminated through the organs of information transmission—television, newspapers, the internet. The ritual purposes of the public trials are even more exquisitely finely tuned. These are the great sites for the performance of law and the memorialization of social practice, of behavior norms to eb rewarded or punished. I have written of the critical role of the judiciary in the production of culture. See Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College THIRD WORLD LAW JOURNAL 291 (2000).
Ironically, then, the deaths of Milosevich—for the political sphere—and Lay—for the economic sphere—provided similar difficulties for a culture in which law substitutes for morality and the bodies of the criminal serve as the material on which socially important discourse is written. “Discourse will become the vehicle of the law: the constant principle of universal recording. The poets of the people will at last join those who call themselves the “missionaries of eternal reason”; they will become moralists. ” (Id., at 112). Deprived of the bodies of Kenneth Lay and Slobodan Milosevich, society can not reinforce the connection between law, morals and behavior. For the immediate victims, there will be the frustration of those deprived of any pre-modern satisfaction of seeing justice done on the body of the condemned. For the state, other bodies will have to be found to satisfy the rituals required for the maintenance of law. “This legible lesson, this ritual recoding, must be repeated as often as possible; the punishments must be a school rather than a festival; an ever open book rather than a ceremony.” (Id., at 111). For this purpose there are many others available. We look forward to the trials of the former leader of Liberia and future corporate criminals.