* * *
of rhetoric? Certainly not those who are considered respectable (some of them are) because they are sleeping at that hour, and the great example has not been announced to them, and they will be eating their toast and marmalade at the time of the premature burial, and they will be informed of the work of justice, if perchance they read the newspapers, by an insipid news item that will melt like sugar in their memory. And, yet, those peaceful creatures are the ones who provide the largest percentage of homicides. Many such respectable people are potential criminals. According to a magistrate, the vast majority of murderers he had known did not know when shaving in the morning that they were going to kill later in the day. As an example and for the sake of securitv, it would be wiser, instead of hiding the execu-tion, to hold up the severed head in front of all who are shaving in the morning.
Nothing of the sort happens. The State disguises executions and keeps silent about these statements and eyewitness accounts. Hence it doesn't believe in the exemplary value of the penalty, except by tradition and because it has never bothered to think about the matter. The criminal is killed because this has been done for centuries and, besides, he is killed in a way that was set at the end of the eighteenth century. Out of habit, people will turn to arguments that were used centuries ago, even though these arguments must be contradicted by measures that the evolution of public sensitivity has made inevitable. A law is applied without being thought out and the condemned die in the name of a theory in which the executioners do not believe. If they believed
* * *
in it, this would be obvious to all. But publicity not only arouses sadistic instincts with incalculable repercussions eventually leading to another murder; it also runs the risk of provoking revolt and disgust in the public opinion. It would become harder to execute men one after another, as is done in our country today, if those executions were translated into vivid images in the popular imagination. The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail. And the texts I have quoted might seem to vindicate certain professors of criminal law who, in their obvious inability to justify that anachronistic penalty, console themselves by declaring, with the sociologist Tarde, that it is better to cause death without causing suffering than it is to cause suffering without causing death. This is why we must approve the position of Gam-betta, who, as an adversary of the death penalty, voted against a bill involving suppression of publicity for executions, declaring: "If you suppress the horror of the spectacle, if you execute inside prisons, you will smother the public outburst of revolt that has taken place of late and you will strengthen the death penalty." Indeed, one must kill publicly or confess that one does not feel authorized to kill. If society justifies the death penalty by the necessity of the example, it must justify itself by making the publicity necessary. It must show the executioner's hands each time and force everyone to look at them—the over-delicate citizens and all those who had any responsibility in bringing the executioner into being. Otherwise, society admits that it kills without knowing what it is saying or doing. Or else it admits
* * *
that such revolting ceremonies can only excite crime or completely upset opinion. Who could better state this than a magistrate at the end of his career, Judge Falco, whose brave confession deserves serious reflection: "The only time in my life when I decided against a commutation of penalty and in favor of execution, I thought that, despite my position, I could attend the execution and remain utterly impassive. Moreover, the criminal was not very interesting: he had tormented his daughter and finally thrown her into a well. But, after his execution, for weeks and even months, my nights were haunted by that recollection. . . . Like everyone else, I served in the war and saw an innocent generation die, but I can state that nothing gave me the sort of bad conscience I felt in the face of the kind of administrative murder that is called capital punishment." 6
But, after all, why should society believe in that example when it does not stop crime, when its effects, if they exist, are invisible? To begin with, capital punishment could not intimidate the man who doesn't know that he is going to kill, who makes up his mind to it in a flash and commits his crime in a state of frenzy or obsession, nor the man who, going to an appointment to have it out with someone, takes along a weapon to frighten the faithless one or the opponent and uses it although he didn't want to or didn't think he wanted to. In other words, it could not intimidate the man who is hurled into crime as if into a calamity. This is tantamount to saying that it is powerless in the majority of cases. It is only fair to point out that in our country capital punishment 6 Realites, No. 105 (October 1954).
* * *
is rarely applied in such cases. But the word "rarely" itself makes one shudder.
Does it frighten at least that race of criminals on whom it claims to operate and who live off crime? Nothing is less certain. We can read in Koestler that at a time when pickpockets were executed in England, other pickpockets exercised their talents in the crowd surrounding the scaffold where their colleague was being hanged. Statistics drawn up at the beginning of the century in England show that out of 250 who were hanged, 170 had previously attended one or more executions. And in 1886, out of 167 condemned men who had gone through the Bristol prison, 164 had witnessed at least one execution. Such statistics are no longer possible to gather in France because of the secrecy surrounding executions. But they give cause to think that around my father, the day of that execution, there must have been a rather large number of future criminals, who did not vomit. The power of intimidation reaches only the quiet individuals who are not drawn toward crime and has no effect on the hardened ones who need to be softened. In Koestler's essay and in the detailed studies will be found the most convincing facts and figures on this aspect of the subject.
It cannot be denied, however, that men fear death. The privation of life is indeed the supreme penalty and ought to excite in them a decisive fear. The fear of death, arising from the most obscure depths of the individual, ravages him; the instinct to live, when it is threatened, panics and struggles in agony. Therefore the legislator was right in thinking that his law was based upon one of the most mysterious and most powerful incentives of
* * *
human nature. But law is always simpler than nature. When law ventures, in the hope of dominating, into the dark regions of consciousness, it has little chance of being able to simplify the complexity it wants to codify. If fear of death is, indeed, a fact, another fact is that such fear, however great it may be, has never sufficed to quell human passions. Bacon is right in saying that there is no passion so weak that it cannot confront and overpower fear of death. Revenge, love, honor, pain, another fear manage to overcome it. How could cupidity, hatred, jealousy fail to do what love of a person or a country, what a passion for freedom manage to do? For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists. Why? Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium. They are variable forces constantly waxing and waning, and their repeated lapses from equilibrium nourish the life of the mind as electrical oscillations, when close enough, set up a current. Just imagine the series of oscillations, from desire to lack of appetite, from decision to renunciation, through which each of us passes in a single day, multiply these variations infinitely, and you will have an idea of psychological proliferation. Such lapses from equilibrium are generally too fleeting to allow a single force to dominate the whole being. But it may happen that one of the soul's forces breaks loose until it fills the whole field of consciousness; at such a moment no instinct, not even that of life, can oppose the tyranny of that irresistible force. For capital punishment to be really intimidat-
* * *
ing, human nature would have to be different; it would have to be as stable and serene as the law itself. But then human nature would be dead.
/> It is not dead. This is why, however surprising this may seem to anyone who has never observed or directly experienced human complexity, the murderer, most of the time, feels innocent when he kills. Every criminal acquits himself before he is judged. He considers himself, if not within his right, at least excused by circumstances. He does not think or foresee; when he thinks, it is to foresee that he will be forgiven altogether or in part. How could he fear what he considers highly improbable? He will fear death after the verdict but not before the crime. Hence the law, to be intimidating, should leave the murderer no chance, should be implacable in advance and particularly admit no extenuating circumstance. But who among us would dare ask this?
If anyone did, it would still be necessary to take into account another paradox of human nature. If the instinct to live is fundamental, it is no more so than another instinct of which the academic psychologists do not speak: the death instinct, which at certain moments calls for the destruction of oneself and of others. It is probable that the desire to kill often coincides with the desire to die or to annihilate oneself.7 Thus, the instinct for self-preservation is matched, in variable proportions, by the instinct for destruction. The latter is the only way of explaining altogether the various perversions which,
7 It is possible to read every week in the papers of criminals who originally hesitated between killing themselves and killing others.
* * *
from alcoholism to drugs, lead an individual to his death while he knows full well what is happening. Man wants to live, but it is useless to hope that this desire will dictate all his actions. He also wants to be nothing; he wants the irreparable, and death for its own sake. So it happens that the criminal wants not only the crime but the suffering that goes with it, even (one might say, especially) if that suffering is exceptional. When that odd desire grows and becomes dominant, the prospect of being put to death not only fails to stop the criminal, but probably even adds to the vertigo in which he swoons. Thus, in a way, he kills in order to die.
Such peculiarities suffice to explain why a penalty that seems calculated to frighten normal minds is in reality altogether unrelated to ordinary psychology. All statistics without exception, those concerning countries that have abolished execution as well as the others, show that there is no connection between the abolition of the death penalty and criminality.8 Criminal statistics neither increase nor decrease. The guillotine exists, and so does crime; between the two there is no other apparent connection than that of the law. All we can conclude from the figures, set down at length in statistical tables, is this: for centuries crimes other than murder were punished with death, and the supreme punishment, repeated over and over again, did not do away with any
8 Report of the English Select Committee of 1930 and of the English Royal Commission that recently resumed the study: "All the statistics we have examined confirm the fact that abolition of the death penalty has not provoked an increase in the number of crimes."
* * *
of those crimes. For centuries now, those crimes have no longer been punished with death. Yet they have not increased; in fact, some of them have decreased. Similarly, murder has been punished with execution for centuries and yet the race of Cain has not disappeared. Finally, in the thirty-three nations that have abolished the death penalty or no longer use it, the number of murders has not increased. Who could deduce from this that capital punishment is really intimidating?
Conservatives cannot deny these facts or these figures. Their only and final reply is significant. They explain the paradoxical attitude of a society that so carefully hides the executions it claims to be exemplary. "Nothing proves, indeed," say the conservatives, "that the death penalty is exemplary; as a matter of fact, it is certain that thousands of murderers have not been intimidated by it. But there is no way of knowing those it has intimidated; consequently, nothing proves that it is not exemplary." Thus, the greatest of punishments, the one that involves the last dishonor for the condemned and grants the supreme privilege to society, rests on nothing but an unverifiable possibility. Death, on the other hand, does not involve degrees or probabilities. It solidifies all things, culpability and the body, in a definitive rigidity. Yet it is administered among us in the name of chance and a calculation. Even if that calculation were reasonable, should there not be a certainty to authorize the most certain of deaths? However, the condemned is cut in two, not so much for the crime he committed but by virtue of all the crimes that might have been and were not committed, that can be and will not be com-
* * *
mitted. The most sweeping uncertainty in this case authorizes the most implacable certainty.
I am not the only one to be amazed by such a dangerous contradiction. Even the State condemns it, and such bad conscience explains in turn the contradiction of its own attitude. The State divests its executions of all publicity because it cannot assert, in the face of facts, that they ever served to intimidate criminals. The State cannot escape the dilemma Beccaria described when he wrote: "If it is important to give the people proofs of power often, then executions must be frequent; but crimes will have to be frequent too, and this will prove that the death penalty does not make the complete impression that it should, whence it results that it is both useless and necessary." What can the State do with a penalty that is useless and necessary, except to hide it without abolishing it? The State will keep it then, a little out of the way, not without embarrassment, in the blind hope that one man at least, one day at least, will be stopped from his murderous gesture by thought of the punishment and, without anyone's ever knowing it, will justify a law that has neither reason nor experience in its favor. In order to continue claiming that the guillotine is exemplary, the State is consequently led to multiply very real murders in the hope of avoiding a possible murder which, as far as it knows or ever will know, may never be perpetrated. An odd law, to be sure, which knows the murder it commits and will never know the one it prevents.
What will be left of that power of example if it is proved that capital punishment has another power, and
* * *
a very real one, which degrades men to the point of shame, madness, and murder?
It is already possible to follow the exemplary effects of such ceremonies on public opinion, the manifestations of sadism they arouse, the hideous vainglory they excite in certain criminals. No nobility in the vicinity of the gallows, but disgust, contempt, or the vilest indulgence of the senses. These effects are well known. Decency forced the guillotine to emigrate from Place de l'Hotel de Ville to the city gates, then into the prisons. We are less informed as to the feelings of those whose job it is to attend such spectacles. Just listen then to the warden of an English prison who confesses to "a keen sense of personal shame" and to the chaplain who speaks of "horror, shame, and humiliation." 9 Just imagine the feelings of the man who kills under orders—I mean the executioner. What can we think of those officials who call the guillotine "the shunting engine," the condemned man "the client" or "the parcel"? The priest Bela Just, who accompanied more than thirty condemned men, writes: "The slang of the administrators of justice is quite as cynical and vulgar as that of the criminals." 1 And here are the remarks of one of our assistant executioners on his journeys to the provinces: "When we would start on a trip, it was always a lark, with taxis and the best restaurants part of the spree!"2 The same one says, boasting of the executioner's skill
9 Report of the Select Committee, 1930.
1 La Potence et la Croix (Fasquelle).
2 Roger Grenier: Les Monstres (Gallimard).
* * *
in releasing the blade: "You could allow yourself the fun of pulling the client's hair." The dissoluteness expressed here has other, deeper aspects. The clothing of the condemned belongs in principle to the executioner. The elder Deibler used to hang all such articles of clothing in a shed and now and then would go and look at them. But there are more serious aspects. Here is what our assistant executioner declares: "The new e
xecutioner is batty about the guillotine. He sometimes spends days on end at home sitting on a chair, ready with hat and coat on, waiting for a summons from the Ministry."3
Yes, this is the man of whom Joseph de Maistre said that, for him to exist, there had to be a special decree from the divine power and that, without him, "order yields to chaos, thrones collapse, and society disappears." This is the man through whom society rids itself altogether of the guilty man, for the executioner signs the prison release and takes charge of a free man. The fine and solemn example, thought up by our legislators, at least produces one sure effect—to depreciate or to destroy all humanity and reason in those who take part in it directly. But, it will be said, these are exceptional creatures who find a vocation in such dishonor. They seem less exceptional when we learn that hundreds of persons offer to serve as executioners without pay. The men of our generation, who have lived through the history of recent years, will not be astonished by this bit of information. They know that behind the most peaceful and familiar faces slumbers the impulse to torture and 3 Ibid.