I don’t remember the first time I read Franz Kafka’s short story “In the Penal Colony” in which the Officer extols the virtues of an execution machine to an observer.
“It’s a remarkable apparatus,” said the Officer to the Explorer and gazed with a certain look of admiration at the device…”
Like he’s Bob Barkering the features of the latest Amana range on the Price is Right, the Officer shows off the Bed, the Harrow, the Inscriber, the cotton, the water to wash away the blood and the dirty piece of cloth that’s used to muffle the condemned man’s screams. He delights in describing the procedure by which the man is chained to the Bed while the Harrow plunges needles into his body transcribing his sentence with artful flourishes. This is no trip to the friendly local tattoo artist. The twelve-hour procedure results in death.
I do remember, however, the summer I stumbled upon the Medieval Crime Museum in Rothenburg ob der Tauber, Germany – wandered into room after room of shame punishments and torture devices of all shapes and sizes some as equally maniacal and depraved as Kafka’s apparatus.
It was 1985. I had just finished my first year of law school and I had landed a civilian internship with the Army Jag Corps in Germany (before the fall of the Berlin Wall, the Cold War still raging, Germany still split in two.) I was posted in Ansbach with the First Armored Division. For three months I consulted the UCMJ (The Uniform Code of Military Justice) and issued non-judicial Article 15 letters of reprimand to soldiers who had “violated good order and discipline.” The soldiers were found guilty, without a formal proceeding, of minor infractions like being a smart ass, or lazy, or sloppy, or drunken, or late to work, or going AWOL or falling asleep on the job. This was not very exciting work but I was thrilled to be overseas in a foreign country for the first time in my life.
I was in love with the law, in the love with the idea of becoming a lawyer. There was so much to learn. I was a sponge soaking it all up but without discernment. I didn’t know enough law and had not experienced enough life yet to be critical of it. To question whether the ends justified the means.
On the weekends, I tagged along with a small group of the younger JAGs to discotheques playing George Michael’s “Careless Whisper,” and to Wolksmarches – 10k hikes across the German countryside, through farms and forests. We were rewarded at the end with beer and a medal but not before we were reprimanded for running rather walking by the omas with their walking sticks clicking their tongues at us. They reminded me of my own German grandma back in Ohio. We visited The Palace of Justice, courtroom 600 where my law school professor Henry T. King prosecuted Nazis.
We drove to a fairytale of a town, Rothenburg, a medieval village overlooking the river, with charming gingerbread houses with pointed gables, red tiled roofs and blooming flower boxes. We explored the cobblestone market place, a cuckoo clock shop, admired a stunning gothic cathedral. We stumbled upon the Medieval Crime Museum. I was stunned by Iron Maiden an upright coffin with spikes, the rack, the thumbscrew (also known as the devil’s handshake), the breaking wheel. Most of these devices were used to force confessions. The damage done to their bodies, in the matter of course of things, was punishment without due process.
The Officer in “In the Penal Colony” admits to the Traveler that he is the sole judge and jury. He admits that the Condemned is not informed of his sentence or his crime in advance. What good would that do? “This way he feels it in his body.” The Officer says with pride:
“The matter stands like this. Here in the penal colony I have been appointed judge. In spite of my youth. For I stood at the side of our previous Commandant in all matters of punishment, and I also know the most about the apparatus. The basic principle I use for my decisions is this: Guilt is always beyond a doubt.”
Guilt is always beyond a doubt.
In 1985, I was grateful for living in what I thought was a civilized time. I couldn’t imagine these cruel devices being put to use or punishment without due process.
I bought a red cloth bound book about the museum from the gift shop. I brought it back to the States and it has traveled with me for over thirty years from Ohio to Canada to my home in Pittsburgh. I stashed it in my bookcase next to my Ohio Rules of Civil Procedure, my evidence hornbook, and Laurence Tribe on Constitutional Law.
When I started writing Esquire Ball, the memory of the museum came flooding back. I thought I would feature a mask of shame – the iron masks that resembled pig faces for men who acted like swine, the masks with lolling tongues for blabbermouths. Something light and charming. A flash fiction piece entitled “Confession.”
But current events made the room of torture devices reserved for women more compelling. Imagine the Breast Ripper (an implement designed to rip off a woman’s breast) and the Pear of Anguish (a beautifully crafted speculum inserted into a woman – its sharp bladed petals opened with a key) both designed to induce confessions of promiscuity. The Dobbs decision overturning Roe v Wade had just come out. It was followed shortly thereafter by the Texas State law with the bounty hunter provision allowing private citizens to sue anyone who aides, abets or provides abortion services. Newspaper articles relayed stories about woman who had been denied prenatal care, who died or came close to dying or who could no longer have babies because of the denied care.
It all felt very much like those medieval torture devices and Kafka’s Officer who operated on the principle that according to him guilt was always beyond a doubt.
I began to wonder what type of person dreams up these new laws and how compliance spreads.
The Traveler in “In the Penal Colony” is initially appalled by the barbarity of the apparatus but he doesn’t feel like it’s his place to intervene. The Officer opines that the apparatus is falling out of favor. He suggests that the Traveler put in a good word with the new Commandant, to support the continued use of the apparatus, the Officer says:
“So listen to my plan. To carry it out, it’s necessary, above all, for you to keep as quiet as possible today in the colony about your verdict on this procedure. Unless someone asks you directly, you should not express any view whatsoever. But what you do say must be short and vague. I’m not asking you to lie, not at all. You should give only brief answers—something like, ‘Yes, I’ve seen the execution’ or ‘Yes, I’ve heard the full explanation.’ That’s all—nothing further.”
When I wrote “Drive” I couldn’t imagine present days. I wonder now, who thinks up Alligator Alcatraz and CECOT. Who dreams up narratives white washing the execution of American protestors on the streets of Minnesota? Who is complicit with their silence? Are we making the Middle Ages great again?
