ISSN: 1705-6411
Volume 6, Number 1 (January, 2009)
Author: Allen Mendenhall

I. Introduction
For 128 years, West Virginia’s Moundsville Penitentiary was the site of overpopulation, riots, escapes, and harsh living conditions. In 1982, a prisoner named Jesse White succeeded in drawing national attention to the Penitentiary’s dreadful environment. White, who was in prison for murder, initiated a hunger strike to protest conditions at the Penitentiary, lost over one hundred pounds, and voluntarily ended his strike once his case was argued [See White v. Narick: 170 West Virginia, 195, 292 S.E.2d 54, 55, 1982]. He claimed a right to privacy – to hunger strike without state intervention (force feeding). The West Virginia Supreme Court of Appeals disagreed with White’s claim and held that “a prisoner’s right to privacy must be balanced against several state interests in keeping him alive: preservation of life and its converse, prevention of suicide; protection of interests of innocent third parties; and maintenance of medical ethical integrity” (Ibid). Further, “A prisoner’s constitutional rights can be restricted or abridged when they substantially interfere with orderly prison administration” (Ibid). The final footnote of the case indicates that over a dozen habeas corpus petitions were then pending in Marshall County, anticipating that more litigation regarding the conditions at Moundsville would reach the state’s highest court (Ibid:58).

As early as 1937, judges objected to congestion within the Penitentiary: “[W]hile sitting in Lewisburg, Judge McClintic declared the West Virginia state penitentiary at Moundsville a ‘shame and disgrace’ because ‘2,500 [prisoners] are crowded into a place built for 800’” (Bowman, 2007:725, 742). In 1986, after a violent prison riot, the West Virginia Supreme Court of Appeals ruled that the prison’s conditions constituted cruel and unusual punishment (see Crain v. Bordenkircher, 1986). Chief Justice Thomas B. Miller, citing the findings made by Judge Arthur Recht, held that “[c]ertain conditions of jail confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution” (Ibid.:422). Since 1995, when the state transferred Moundsville’s remaining thirty-four inmates to a new maximum security prison at Mount Olive in Fayette County, the notoriety of the prison has subsided (Bumgartner, et. al., 1986).

Recently, mainstream media have attended to the Penitentiary with theatrical sensationalism, celebrating it as an icon of recreation, diversion, and amusement. For example, the melodramatic MTV program “Fear” featured the Penitentiary in a 2002 episode. The Sci-Fi Channel followed up by featuring the Penitentiary as part of its “Ghost Hunts” series. According to the tour of the prison (2007) Steven Spielberg has included the Penitentiary in a forthcoming documentary about “haunted” edifices. Not surprisingly, then, when I monitored the Penitentiary’s histrionic website during the 2007 Halloween season, the freakish, fanciful portrayal of prison life disturbed me more than the “ghosts” I encountered during my tour of the Penitentiary weeks later.1 The current self-portrayal of Moundsville Penitentiary makes light the prison’s actual history of suffering and contextualizes death and punishment within the realm of the fantastic, going so far as to suggest that dead prisoners persist as vengeful, haunting ghosts. Consider this marketing call from the Penitentiary’s website:

The former West Virginia penitentiary housed some of the most violent criminals in history. Many of the prisoners who lived here also died here. The prison is known to have one of the highest levels of paranormal activity in the United States and most people who have survived the dungeon of horrors believe that the prisoners still haunt the darkened hallways of the prison today. Purchase your tickets in advance and skip the lines

I toured the dungeon of horrors with at least twenty other people – all survived. None heard or saw anything indicating that prisoners haunted the darkened hallways.

Predictably, those most influential in the continuation of ghostly legends have economic stakes in the Penitentiary. In an interview with a reporter for The Saturday Gazette-Mail, Paul Kirby, the former healthcare administrator and a former deputy warden of the Penitentiary, spoke casually of otherworldliness at the prison: “Paranormal activity? It’s here, believe me. When I worked there, I was frightened every day I went inside and the door closed behind me. You never knew what could happen while you waited for your eight hours to end” (Steelhammer, October 28, 2007). Kirby concluded, “If you go into that empty prison and don’t feel something eerie, there’s probably something wrong with you” (Ibid). Kirby does not mention specific paranormal encounters; he mentions fear. Yet fear alone will not verify the existence of the fantastic. And what to make of Kirby’s comment that something is wrong with those who do not witness paranormal activity? Are these people dishonest, mistaken, or psychotic? Doubtfully. Kirby’s comment actually reverses the more likely assumption: if you believe in the fantastic, you are crazy. Those inclined to believe in the fantastic might also be inclined to believe Kirby’s allegations, until they discover that Kirby is not a disinterested party: he is head of the Moundsville Economic Council, thus rendering his commentary as advertising copy.

The edifice that used to house a multitude of prisoners has been transformed from active institution into historical spectacle. At one time, the only individuals who were allowed into the Penitentiary were criminals and prison employees; but today visitors need only log on to to purchase their admission. Making this commercialization trend more interesting is the likelihood that people are visiting the Penitentiary to witness what prison is “really” like.

This essay examines these developments and argues that Moundsville Penitentiary is both a model and a symptom of the hyperreality referred to by Baudrillard. Hyperreality is as problematic in West Virginia as it is in the global contexts discussed by Baudrillard. This essay also interrogates these developments with specific attention to capital punishment and the criminal body.

II. Hyperreality: From Prison to Playground
Baudrillard prefaces Simulacra and Simulation with Borges’ fable in which an empire’s artists fashioned a map as large as the empire itself. For Baudrillard, Borges’ map constitutes hyperreality – the simulation of something that never really existed. He then suggested that our situation turns the fable upside down – instead of hyperreality (the map) floating on the real – we are today faced with a situation where only small leftovers of the real are floating in hyperreality (see Baudrillard, 1994:1; 1996:47 and 2000:63). Moundsville’s conversion from actual prison to virtual tourist attraction is but one more instance of our entry into the era of the hyperreal (Baudrillard, 1988:16). Moundsville has become an “ecstatic form of the real” (Baudrillard, 1990:71) participating in a virtual reality based on its non-reality (Baudrillard, 1987:51).

Baudrillard posits that abstraction today is “no longer that of the map, the double, the mirror or the concept” and that simulation is “no longer that of a territory, a referential being or a substance ( Baudrillard, 1994). Today reality disappears by way of pornography, theme parks, casinos, video games, currency, and coverage of armed conflicts – and at Moundsville – by way of small penitentiaries. These paradigmatic abstractions comprise hyperreality: they constitute representations of the real that one perceives as the real itself.

In this age of consumerism, materialism, television, and media, simulators have discarded objectivity for presupposed, personal simulations, or have based simulations on other pre-existing simulations. Quintessential simulations entail media coverage of armed conflicts. Media rarely covers immediate military engagement because such coverage is disallowed, dangerous, unanticipated, or impractical; therefore, news coverage that reaches the airwaves and television is staged, contrived, and unrealistic. For example, in his book Jarhead Anthony Swofford complains of an instance in which American reporters instructed soldiers to pretend to play football in the desert because the scene would make for a good photo-opportunity (Swofford, 2003:17-18). Swofford objects to the idealistic, misleading, and pro-war sentiment this coverage will engender back in the U.S., where the images will appear to the public in print or broadcast form after traversing strategic editorial mediums (alteration, cropping, presentation).

The portrayal of Moundsville Penitentiary is similarly distorting. If the public endorses or accepts the preposterous presentation of the Penitentiary as a collection of themes, playgrounds, and attractions, then actual carceral conditions remain masked and suppressed. Rather than discussing the harsh restrictions of prisoners, visitors will witness the reenactment of prison riots. Rather than discussing serious objections to capital punishment, visitors will scream when the ceiling to the Death House drops suddenly open, and the effigy of a prisoner plummets towards the ground and then snaps short, hanging suspended by a noose around its neck. All of the complicated features of the carceral machine will be commoditized and commercialized to satisfy public desires for a cheap thrill. The few visitors who come to observe what prison is “really” like will leave with a “corrected” (virtual) version of Moundsville’s history.

Weidman demonstrates the peril of hyperreality. Without explicitly referencing the term, she suggests that common law systems are hyperreal (Weidman, 2004: 51 U.C.L.A. L. Rev. 1505, 1544). Weidman indicates that lawyers defending super maximum confinement prisons against Eighth Amendment challenges rename and transform facilities by skirting issues and focusing on inmates’ fitness to live in confinement rather than on severe living arrangements (Ibid). In Madrid v. Gomez, for example, lawyers categorized inmates into subsets or classes based on mental health, thereby diverting judges from the ultimate issue: whether the conditions of super maximum confinement prisons were cruel and unusual (Ibid.:1537). By employing this strategy the lawyers were offering the court a “win-win” situation: the court could extend protection to one class (to appease the “liberals”) and deny protection to the others (to appease the “conservatives”). Interestingly, this division of bodies fits well with Foucault’s assessment of panopticism: “[A]ll the authorities exercising individual control function according to a double mode; that of binary division (mad/sane; dangerous/harmless; normal/abnormal); and that of coercive assignment, of differential distribution” (Foucault, 1977:199). Indeed, Foucault indicates that categorizing or compartmentalizing people according to binaries ensures constant surveillance, the means by which the “powers that be” preserve their supremacy.

The Madrid case demonstrates how some lawyers have come to strategize against “the real” by creating alternate, seemlier realities. This has helped legitimate the inhumane treatment of prisoners by blurring distinctions between “regular” and super maximum facilities. Super maximum prisons are very different from conventional prisons: they rely on solitary confinement and rarely offer educational, religious, or legal programming (Weidman, 2004:1525). Inmates in super maximum prisons “generally spend almost all day in their cells, which are windowless and stark, behind solid doors that keep inmates from seeing outside or communicating clearly with prison officials or one another” (Ibid.:1526). Moreover, super maximum prisons “use heavy restraints during any out-of-cell movement, allow virtually no direct contact with other prisoners or guards, and impose tight restrictions on visitation and telephone privileges” (Ibid.:1526-27). Prisoners can work or exercise, but only in specially designated cells, and contact with the outside world is almost totally disallowed (Ibid). These conditions are far more harsh than those in conventional prisons.

Using the Madrid case as a paradigm, Weidman infers that lawyers have gradually manipulated a softened image of super maximum confinement prisons by exploiting judges’ assumptions that super maximum conditions are “similar enough to those in conventional prisons that they can be appropriately subjected to the constitutional analysis developed for conventional prisons” (Ibid.:1544). This reference to “conventional prisons” raises two questions: What is the conventional prison and is it constitutional?2

When courts accept lawyers’ distorted portrayals of super maximum prisons and ignore true, problematic living conditions, they create bad precedent; and subsequent decisions rely on this precedent. This process culminates in hyperreal notions of super maximum facilities. In a footnote, Weidman likens this process to the transformation of Alcatraz from maximum-security facility into theme park (Ibid.:1546). The mystification of Alcatraz erased and glorified cruel treatments of prisoners and thereby ensured the persistence of severe practices in other facilities. Unreflective visitors to Alcatraz marvel in the fun to be had there; they wonder what all the fuss is about. Sure, living at Alcatraz would become monotonous, but look at the beautiful views of the ocean, the profundity of the structures, the capacious living arrangements as presented to the tourists. Imagine how much time prisoners had to catch up on summer readings, look at the boats, people, families — and to think that prisoners wanted out!

The portrayal of Moundsville Penitentiary perpetuates similar virtualized symbolic perceptions. The Death House at the Penitentiary, with its hanging effigy, is particularly interesting. It is located on the prison yard and looks like an old barn. During my tour, the guide led me and my group into the Death House and began describing how the state once carried out hangings, how the citizens of West Virginia, Pennsylvania, and Maryland would drive to the Penitentiary to watch these spectacles of death. Some of the privileged were allowed inside the prison walls for a “front row seat.” Others found ways to watch from outside the prison walls, from “every available elevated space on fence, house-top, second story windows and the like” (Neale, 1890:6).

As the guide explained how the Death House was used, the children in my tour oohed and awed. The adults looked at each other incredulously when she mentioned that West Virginia no longer implemented capital punishment. One man said, “No death penalty here? That can’t be right.” The floor of the Death House was marked in paint with a giant X. Two young girls skipped to the middle of the X and cheered, “X marks the spot!” Then, before we tourists could prepare, the guide declared something about the space in the ceiling from which the condemned plummeted. She flipped a lever to open that space. A thunderous noise ensued. Everyone was startled and the girls standing on the X screamed. Wooden barn doors in the ceiling had flung open, and the heavy effigy of a condemned prisoner plunged towards us rapidly. A loud thud indicated that the rope had reached its limit and the body recoiled slightly. The guide later explained that “in real life” this snapback had often decapitated prisoners. The young girls cried, “eew.” The young boys howled, “cool!” The man in denial over the state of the death penalty in West Virginia remarked something about Saddam Hussein and about how hanging would still be the preferred measure of calculated death were it not for the squeamishness of society today. Perhaps we get the prison tours we deserve! However one feels about that sentiment, the tour of Moundsville is an important part of its entry into the hyperreal.

III. Romanticizing Prison and Execution
Moundsville’s website celebrates the “astonishing 90 minute tour that offers an awesome history, a touch of art, cold hard facts, [and] an education of the Justice System” ( Nevertheless, this exhibition was less educational than spectacular; coupled with the Halloween theme of the Penitentiary, it constituted a genre radically different from (and replacing) the living history of the prison, a staging ground for a set of effects distinct from edification. The Death House signified both the horror genre and a shift in the political technology of the body: the modern prison is supposed to train the acquiescent, docile body, but the Death House exhibition recalled public executions – the ceremonies by which the sovereign manifested power and reminded of its supremacy (Foucault, 1977:47-49)3 . This hyperreal exhibition was not so much based on past realities (18th and 19th century capital punishment), but more on the tropes and signifiers (beating hearts, hanging bodies) of current hyperreality with audience members’ predicted responses serving to add to the special effect. The horror theme detaches spectators from the grotesque state of 18th and 19th century executions (which it signifies) because simulated executions eradicate the role of the sovereign, leaving no tangible entity supposedly exacting the vengeance of the law – or suspending both law and vengeance (Foucault, 1977:53). The horror theme also misrepresents punishment because it is inconsistent with the state of the contemporary prison and the death penalty. Together, these problems evacuate the humanity of prisoners past and present. In other words, the Halloween horror tour disables any kind of empathetic identification with the condemned and obscures the history of revolt, a history underscored by Foucault.

Foucault indicates that the “disappearance of public executions marks therefore the decline of the spectacle; but it also marks a slackening of the hold on the body” (Foucault, 1977:10). In the 18th and 19th centuries, punishment was manifested by way of the ceremonially tortured body. A publicly and ritualistically dismembered or amputated body signified the power of the sovereign. Gradually, though, the aim of punishment “re-corporealized”: the focus shifted from maimed or disfigured bodies to hidden, docile bodies. Punishment modified from public/tortuous to private/passive. In the modern prison, the docile body became disciplined: it was constrained, distributed according to strict spatial and temporal arrangements, and subjected to panopticism.

The horror genre of the Moundsville tour produces a new set of implications for the modern prison because the horror genre is always about destroying and mutilating the body and not about training the body into submission. The horror theme falsifies prison by taking us back to a fabrication of the 18th and 19th centuries, when public execution – “death theater” – was the norm. This alteration of space and time re-corporealizes punishment (by shifting the focus from the docile body back to the maimed or disfigured body) and violates actual prison experience – hence, the one man’s dismay that hanging was no longer considered civil. This man saw a hanging effigy and could not attribute human features to it. The effigy worked to desensitize him. When the tour guide spoke of decapitation, her words were lost: the effigy kept its head, and even if it had lost its head, it would still have been nothing but a puppet, an imitation, a replica – a simulacrum. The “counterfeit” hanging distanced the prison tourists from an actual hanging – and it did so literally because the human was replaced with a nonhuman thing. That does not mean that if the simulation showed, say, disciplined bodies, it would be more appropriate; those disciplined bodies also would be sensationalized and divorced from real lives. What the horror trope does is mystify the whole legal apparatus that incarcerates and kills. In the prison tourism of Moundsville we must indeed forget Foucault and remember Baudrillard.
Dwight Conquergood has the following to say about effigies and about how “transforming” humans into effigies discouraged audiences from identifying with the condemned as fellow sinners:

Effigies are crudely fashioned surrogates that bear little resemblance to the person for whom they stand in. They produce magical power from parts, pieces, effluvia, operating on principles of contiguity and synecdoche—the piece, the part that stands for the whole—more than likeness or resemblance. Effigies are rough fabrications made from distorted parts of a person, often excrements such as saliva, blood, hair, fingernail parings, semen, fingerprints, footprints, which are then performatively deployed to put the real person in harm’s way. An effigy is the fusion of image and body, symbol and source, the figurative and the physical. Because a jury will never vote to kill a human being, the fundamental task of the prosecutor is to turn the accused into an effigy composed of his or her worst parts and bad deeds (Conquergood, 2002:353).

Conquergood suggests that the role of the effigy is to detach spectators from a deeply sympathetic identification with the condemned. Accordingly, a prosecutor who depicts a criminal as mere effigy and not as a real human facilitates the hyperreal in much the same way as lawyers who deflect judges’ focus away from conditions at super maximum facilities. Conquergood argues that executions of criminals are made justifiable by the perception that criminals are models, copies, dummies, scarecrows – anything but actual humans. These executions therefore constitute performance, political drama. Indeed, Conquergood calls the execution of Timothy McVeigh an example of “whiteface minstrelsy” (Ibid.:356). If Conquergood is right and actual humans have become effigies in execution rituals, then what we have at Moundsville is an effigy of an effigy. As Baudrillard might well say: “too much is too much” (Baudrillard, 2005:191). It has, however, long been an important part of Baudrillard’s thought that the real is not disappearing for the lack of it – but because there is too much of it – the more real than real, the hyperreal (the “truer than true – simulation”) (Baudrillard, 1990:11).

The hyperreal “executions” at Moundsville amount to moments of mere entertainment, devoid of meaning and of the relationship between sovereign and criminal, spectator and spectacle. I must emphasize the importance of eradicating the role of spectator and spectacle. Foucault describes the spectator/spectacle relationship in much detail.4  “If the crowd gathered round the scaffold”, he begins, “it was not simply to witness the sufferings of the condemned man or to excite the anger of the executioner: it was also to hear an individual who had nothing more to lose curse the judges, the laws, the government and religion” (Foucault, 1977:60). This public sympathy for the condemned precipitated social disturbances. The condemned became a heroic figure, one who could do and say what the “commoner” could not. Foucault continues:

It was evident that the great spectacle of punishment ran the risk of being rejected by the very people to whom it was addressed. In fact, the terror of the public execution created centres of illegality: on execution days, work stopped, the taverns were full, the authorities were abused, insults or stones were thrown at the executioner, the guards and the soldiers; attempts were made to seize the condemned man, either to save him or to kill him more surely; fights broke out, and there was no better prey for thieves than the curious throng around the scaffold (Ibid.:63).

Foucault further indicates that throughout this frenzied process “the people never felt closer to those who paid the penalty” and never felt more threatened “by a legal violence exercised without moderation or restraint” (Ibid). If it could happen to him, it could happen to me – that was the logic of the mob. The Halloween horror tour of Moundsville Penitentiary eliminates this logic: it frames executions as performances of performances.

Inanimate things notwithstanding, tourists do not tend to sympathize with things they fear such as ghouls or ghosts. So, instead of fearing the power of the sovereign, instead of fearing the possibility that if it could happen to him, it could happen to me, the fear factor is reversed: tourists fear the condemned, the thing that is represented as a monster. Tourists therefore delight in the mutilation of the things that they fear – they become like the sovereign, like actual components of the sovereign. After all, the sovereign is frightened by criminals because criminals test its supremacy (Ibid.:62). That is why it so desperately exacts punishment on those who threaten its strength. The horror tour implies that prisoners are like the demonic, and tourists tend to accept this implication (for amusement) and thereby accept the idea that annihilating the demonic is rational.

The history of the prison has represented a movement from the outside to the inside. In a way, the horror tour is about the inside becoming the outside. People go to the inside to see the gruesome and dreadful spectacles that might have existed, in the 18th and 19th centuries, in their outside world. [Ironically this kind of visibility is strictly forbidden in today’s super maximum institutions – replaced by virtual spectacles like Moundsville]. Their purpose for coming to the inside, and what they see on the inside, is reversed: instead of the criminal body representing docility, the tourists’ bodies become docile and powerless – they are jeopardized by terrible “monsters.” In this flipping of the inside/outside binaries the things inside (ghouls, ghosts, specters) are not real, and the fear of them is foolish or simply feigned (or mere entertainment). The inside constitutes one giant simulation made up of smaller imitations, forgeries, and reproductions, and the entire inside/outside interchange is utterly unreasonable.

IV. Epilogue
Rather than describe the real itself, many simulators construct miniature units of the real; and when enough simulators do this, the real itself becomes distorted and perverted such that it is unidentifiable, buried, or concealed – and becomes our new reality. Culture and media have substituted the real with signs and symbols of the real (i.e., they have simulated) such that the public recognizes only the signs and symbols. Accordingly, the public propagates the simulated, perhaps innocently and unintentionally. This continuation of hyperreality is precarious because it deceives individuals into disengaging with “reality” and accepting inauthentic, meaningless appearances [this is precisely Baudrillard’s concern in my view]. Most troublesome, perhaps, is the profit turning that comes at the expense of wider public knowledge about the important institutions that prisons are in our society (their history, treatment of the body, role as tool of the sovereign) and about prisoners (their existence, humanity, and suffering). The City of Moundsville appears to have made its decision – the revenue generated by the hyperrealization of Moundsville Prison is more important than serious engagement with the carceral. Neither Foucault nor Baudrillard would be surprised by this.

Baudrillard earned notoriety by remarking, quite aptly in light of the Swofford quote opening this essay, that the Gulf War did not take place (see Baudrillard, 1995). Similarly, portraying the prison power apparatus – which, in Foucault’s words, exists to “substitute for a power that is manifested through the brilliance of those who exercise it, a power that insidiously objectifies those on whom it is applied” – as public entertainment conceals prison’s true function by way of an interesting kind of symbolic exchange, staging, performance, and recital (Foucault, 1977:220). Attempts to appear horrific and amusing (and horrifically amusing) disguise and obscure the mechanisms of power and dominance intrinsic to carceral networks.

When people cannot distinguish reality from fantasy, the fantastic is legitimized and presumed authoritative; and as the fantastic is legitimized, it becomes more unreasonable. Baudrillard warns of the tendency of this process: “It no longer needs to be rational, because it no longer measures itself against either an ideal or negative instance” (Baudrillard, 1994:2). Such irrationality is exacerbated by the shared agendas (political or otherwise) of many simulators. Those with economic interests in the Penitentiary, for example, insist on “Halloweenification” because they want to maximize profits. And rather than visit a real penitentiary (an active, working penitentiary), tourists come to Moundsville to pay to see a pretend one. They choose a copy over an original. They endorse a fake over an authentic and, in doing so, they endanger the cause of human rights.

Those who visit Moundsville Penitentiary may not distinguish “the inside” from “the outside.” They may accept hyperreality as actuality and become detached from the plight of true prisoners, past and present, who are abused by the sovereign. The presentation of Moundsville Penitentiary needs to change radically. Some might conclude (I among them) that if Moundsville is to remain open to the public it should do so only if it complies with its purported objective: to educate. This case would further argue that if Moundsville remains open for the purposes of education, it should do so without misrepresentation or distortion. The history of the Penitentiary is plenty horrible – the virtual Halloweenification of Moundsville simply replaces the truly horrific with the virtually horrific. Baudrillard once wondered if we prefer the “exile of the virtual” to the “catastrophe of the real” (Baudrillard, 1995:28). In another moment of stark reflection he wrote: “The genius of Hitler and Barnum was not in discovering how to fool the public, but in discovering the public loves to be fooled” (Baudrillard in Genosko, 2001:72). As we attempt to understand Moundsville and other examples of contemporary virtualization these disturbing thoughts may provide more insight than solace.

About the Author
Allen Mendenhall graduated with a Bachelor’s degree in English from Furman University. He has also studied at the University of London (Birkbeck College), the Shakespeare Institute of the University of Birmingham, Centro Universitario Vila Velha, Fundacao Getulio Vargas (Direito Rio), and Temple University, Japan. He is a currently a Teaching Assistant in the Department of Legal Research and Writing at West Virginia University, where he will complete his M.A. in English and J.D. in law in 2009. He is grateful to Dr. Kathleen Ryan and Dr. Dennis Allen of the West Virginia University Department of English for their helpful comments, suggestions, and corrections to this article.

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1 – See the following video at the West Virginia Moundsville Penitentiary website: I would like to note that I took the “regular” tour of Moundsville Penitentiary and not the “Halloween Horror Tour”. Nevertheless, evidence of the Halloween horror tour was impossible to miss.  Puppets and effigies filled the hallways and waiting room, and my tour guide commented several times on the Halloween motif.

2 – Judges’ positions on super maximum prisons relate to the position of the court in McCleskey v. Kemp.  In McCleskey, 481 U.S. 279, 107 S.Ct. 1756 (1987), the petitioner offered a statistical study indicating that the death penalty in Georgia was more frequently imposed on black defendants and on defendants killing white victims than on white defendants and defendants killing black victims.  The U.S. Supreme Court held that this study could not prove that the relevant parties discriminated when they sentenced a black defendant for murder of a white police officer.  The majority found no equal protection violation and refused to reverse the petitioner’s death sentence.  In syllabus point four, the majority wrote that to scrutinize racial statistics would mean examining racial discrimination as it persists across the whole criminal justice system:

The petitioner’s claim, taken to its logical conclusion, throws into serious question the principles that underlie the entire criminal justice system.  His claim easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender.  The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment.  Petitioner’s arguments are best presented to the legislative bodies, not the courts.  Ibid.:281.

The court was not willing to rule that the entire criminal justice system was unconstitutional, so it could not rule that the death penalty was.  Justice Brennan dissented, joined by Justices Marshall, Blackman, and Stevens.  Brennan wrote that the majority’s reasoning suggested a “fear of too much justice.”  Ibid.: 339.  As with super maximum and conventional prisons, the death penalty and the criminal justice system writ large should be considered together.

3 – To be precise, the 19th century would be the period of overlap between the two models of power Foucault discusses: the disciplinary society is organizing the first police forces and constructing panoptic prisons like Moundsville (so the focus is on discipline and docile bodies) but there are still public executions that display the power of the state in the old way (for example, the hanging of Lincoln’s assassins) even though the actual sovereigns are gone (e.g. France) or constrained by the legislative branch (as in England).

4 – Conquergood does not agree with Foucault’s thesis that the spectacle has been removed from public executions.