The State that sows alcohol cannot be surprised to reap crime.2 Instead of showing surprise, it simply goes on cutting off heads into which it has poured so much alcohol. It metes out justice imperturbably and poses as a creditor: its good conscience does not suffer at all. Witness the alcohol salesman who, in answer to the Figaro's inquiry, exclaimed: "I know just what the staunchest enemy of the death penalty would do if, having a weapon within reach, he suddenly saw assassins on the point of killing his father, his mother, his children, or his best friend. Well!" That "well" in itself seems somewhat alcoholized. Naturally, the staunchest enemy of capital
2 The partisans of the death penalty made considerable publicity at the end of the last century about an increase in criminality beginning in 1880, which seemed to parallel a decrease in application of the penalty. But in 1880 a law was promulgated that permitted bars to be opened without any prior authorization. After that, just try to interpret statistics!
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punishment would shoot those murderers, and rightly so, without thereby losing any of his reasons for staunchly defending abolition of the death penalty. But if he were to follow through his thinking and the aforementioned assassins reeked of alcohol, he would then go and take care of those whose vocation is to intoxicate future criminals. It is even quite surprising that the relatives of victims of alcoholic crimes have never thought of getting some enlightenment from the Parliament. Yet nothing of the sort takes place, and the State, enjoying general confidence, even supported by public opinion, goes on chastising assassins (particularly the alcoholics) somewhat in the way the pimp chastises the hard-working creatures who assure his livelihood. But the pimp at least does no moralizing. The State does. Although jurisprudence admits that drunkenness sometimes constitutes an extenuating circumstance, the State is ignorant of chronic alcoholism. Drunkenness, however, accompanies only crimes of violence, which are not punished with death, whereas the chronic alcoholic is capable also of premeditated crimes, which will bring about his death. Consequently, the State reserves the right to punish in the only case in which it has a real responsibility. Does this amount to saying that every alcoholic must be declared irresponsible by a State that will beat its breast until the nation drinks nothing but fruit juice? Certainly not. No more than that the reasons based on heredity should cancel all culpability. The real responsibility of an offender cannot be precisely measured. We know that arithmetic is incapable of adding up the number of our antecedents, whether alcoholic or not. Going
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back to the beginning of time, the figure would be twenty-two times, raised to the tenth power, greater than the number of present inhabitants of the earth. The number of bad or morbid predispositions our antecedents have been able to transmit to us is, thus, incalculable. We come into the world laden with the weight of an infinite necessity. One would have to grant us, therefore, a general irresponsibility. Logic would demand that neither punishment nor reward should ever be meted out, and, by the same token, all society would become impossible. The instinct of preservation of societies, and hence of individuals, requires instead that individual responsibility be postulated and accepted without dreaming of an absolute indulgence that would amount to the death of all society. But the same reasoning must lead us to conclude that there never exists any total responsibility or, consequently, any absolute punishment or reward. No one can be rewarded completely, not even the winners of Nobel Prizes. But no one should be punished absolutely if he is thought guilty, and certainly not if there is a chance of his being innocent. The death penalty, which really neither provides an example nor assures distributive justice, simply usurps an exorbitant privilege by claiming to punish an always relative culpability by a definitive and irreparable punishment.
If indeed capital punishment represents a doubtful example and an unsatisfactory justice, we must agree with its defenders that it is eliminative. The death penalty definitively eliminates the condemned man. That alone, to tell the truth, ought to exclude, for its partisans espe-
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cially, the repetition of risky arguments which, as we have just seen, can always be contested. Instead, one might frankly say that it is definitive because it must be, and affirm that certain men are irremediable in society, that they constitute a permanent danger for every citizen and for the social order, and that therefore, before anything else, they must be suppressed. No one, in any case, can refute the existence in society of certain wild animals whose energy and brutality nothing seems capable of breaking. The death penalty, to be sure, does not solve the problem they create. Let us agree, at least, that it suppresses the problem.
I shall come back to such men. But is capital punishment applied only to them? Is there any assurance that none of those executed is remediable? Can it even be asserted that none of them is innocent? In both cases, must it not be admitted that capital punishment is elimi-native only insofar as it is irreparable? The 15 th of March 1957, Burton Abbott was executed in California, condemned to death for having murdered a little girl of fourteen. Men who commit such a heinous crime are, I believe, classified among the irremediable. Although Abbott continually protested his innocence, he was condemned. His execution had been set for the 15th of March at ten o'clock. At 9:10 a delay was granted to allow his attorneys to make a final appeal.3 At eleven o'clock the appeal was refused. At 11:15 Abbott entered
8 It must be noted that the custom in American prisons is to move the condemned man into another cell on the eve of his execution while announcing to him the ceremony in store for him.
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the gas chamber. At 11:18 he breathed in the first whiffs of gas. At 11:20 the secretary of the Committee on Reprieves called on the telephone. The Committee had changed its mind. They had tried to reach the Governor, who was out sailing; then they had phoned the prison directly. Abbott was taken from the gas chamber. It was too late. If only it had been cloudy over California that day, the Governor would not have gone out sailing. He would have telephoned two minutes earlier; today Abbott would be alive and would perhaps see his innocence proved. Any other penalty, even the harshest, would have left him that chance. The death penalty left him none.
This case is exceptional, some will say. Our lives are exceptional, too, and yet, in the fleeting existence that is ours, this takes place near us, at some ten hours' distance by air. Abbott's misfortune is less an exception than a news item like so many others, a mistake that is not isolated if we can believe our newspapers (see the Deshays case, to cite but the most recent one). The jurist Olivecroix, applying the law of probability to the chance of judicial error, around 1860, concluded that perhaps one innocent man was condemned in every two hundred and fifty-seven cases. The proportion is small? It is small in relation to average penalties. It is infinite in relation to capital punishment. When Hugo writes: that to him the name of the guillotine is Lesurques,4 he does not mean that all those who are decapitated are Lesurques, but that one Lesurques is enough for the 4 This is the name of the innocent man guillotined in the case of the Courrier de Lyon.
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guillotine to be permanently dishonored. It is understandable that Belgium gave up once and for all pronouncing the death penalty after a judicial error and that England raised the question of abolition after the Hayes case. It is also possible to understand the conclusions of the Attorney General who, when consulted as to the appeal of a very probably guilty criminal whose victim had not been found, wrote: "The survival of X . . . gives the authorities the possibility of examining at leisure any new clue that might eventually be brought in as to the existence of his wife.5 . . . On the other hand, the execution, by canceling that hypothetical possibility of examination, would, I fear, give to the slightest clue a theoretical value, a power of regret that I think it inopportune to create." A love of justice and truth is expressed here in a most moving way, and it would be appropriate to quote often in our courts that "power of regret" which so vividly sums up the danger that faces every juror. O
nce the innocent man is dead, no one can do anything for him, in fact, but to rehabilitate him, if there is still someone to ask for this. Then he is given back his innocence, which, to tell the truth, he had never lost. But the persecution of which he was a victim, his dreadful sufferings, his horrible death have been given him forever. It remains only to think of the innocent men of the future, so that these tortures may be spared them. This was done in Belgium. In France consciences are apparently untroubled.
Probably the French take comfort from the idea that 5 The condemned man was accused of having killed his wife. But her body had not been found.
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justice has progressed hand in hand with science. When the learned expert holds forth in court, it seems as if a priest has spoken, and the jury, raised in the religion of science, expresses its opinion. However, recent cases, chief among them the Besnard case, have shown us what a comedy of experts is like. Culpability is no better established for having been established in a test tube, even a graduated one. A second test tube will tell a different story, and the personal equation loses none of its importance in such dangerous mathematics. The proportion of learned men who are really experts is the same as that of judges who are psychologists, hardly any greater than that of serious and objective juries. Today, as yesterday, the chance of error remains. Tomorrow another expert testimony will declare the innocence of some Abbott or other. But Abbott will be dead, scientifically dead, and the science that claims to prove innocence as well as guilt has not yet reached the point of resuscitating those it kills.
Among the guilty themselves, is there any assurance that none but the irretrievable have been killed? All those who, like me, have at a period of their lives necessarily followed the assize courts know that a large element of chance enters into any sentence. The look of the accused, his antecedents (adultery is often looked upon as an aggravating circumstance by jurors who may or may not all have been always faithful), his manner (which is in his favor only if it is conventional—in other words, play-acting most of the time), his very elocution (the old hands know that one must neither stammer nor be too eloquent), the mishaps of the trial enjoyed in a
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sentimental key (and the truth, alas, is not always emotionally effective): so many flukes that influence the final decision of the jury. At the moment of the death verdict, one may be sure that to arrive at the most definite of penalties, an extraordinary combination of uncertainties was necessary. When it is known that the supreme verdict depends on the jury's evaluation of the extenuating circumstances, when it is known, above all, that the reform of 1832 gave our juries the power of granting indeterminate extenuating circumstances, it is possible to imagine the latitude left to the passing mood of the jurors. The law no longer foresees precisely the cases in which death is to be the outcome; so the jury decides after the event by guesswork. Inasmuch as there are never two comparable juries, the man who is executed might well not have been. Beyond reclaim in the eyes of the respectable people of Ille-et-Vilaine, he would have been granted a semblance of excuse by the good citizens of the Var. Unfortunately, the same blade falls in the two Departements. And it makes no distinction.
The temporal risks are added to the geographical risks to increase the general absurdity. The French Communist workman who has just been guillotined in Algeria for having put a bomb (discovered before it went off) in a factory locker room was condemned as much because of the general climate as because of what he did. In the present state of mind in Algeria, there was a desire at one and the same time to prove to the Arab opinion that the guillotine was designed for Frenchmen too and to satisfy the French opinion wrought up by the crimes of terrorism. At the same moment, however, the Minister
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who approved the execution was accepting Communist votes in his electoral district. If the circumstances had been different, the accused would have got off easy and his only risk, once he had become a Deputy of the party, would be finding himself having a drink at the same bar as the Minister someday. Such thoughts are bitter, and one would like them to remain alive in the minds of our leaders. They must know that times and customs change; a day comes when the guilty man, too rapidly executed, does not seem so black. But it is too late and there is no alternative but to repent or to forget. Of course, people forget. Nonetheless, society is no less affected. The unpunished crime, according to the Greeks, infected the whole city. But innocence condemned or crime too severely punished, in the long run, soils the city just as much. We know this, in France.
Such, it will be said, is human justice, and, despite its imperfections, it is better than arbitrariness. But that sad evaluation is bearable only in connection with ordinary penalties. It is scandalous in the face of verdicts of death. A classic treatise on French law, in order to excuse the death penalty for not involving degrees, states this: "Human justice has not the slightest desire to assure such a proportion. Why? Because it knows it is frail." Must we therefore conclude that such frailty authorizes us to pronounce an absolute judgment and that, uncertain of ever achieving pure justice, society must rush headlong, through the greatest risks, toward supreme injustice? If justice admits that it is frail, would it not be better for justice to be modest and to allow its judgments
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sufficient latitude so that a mistake can be corrected? 8 Could not justice concede to the criminal the same weakness in which society finds a sort of permanent extenuating circumstance for itself? Can the jury decently say: "If I kill you by mistake, you will forgive me when you consider the weaknesses of our common nature. But I am condemning you to death without considering those weaknesses or that nature"? There is a solidarity of all men in error and aberration. Must that solidarity operate for the tribunal and be denied the accused? No, and if justice has any meaning in this world, it means nothing but the recognition of that solidarity; it cannot, by its very essence, divorce itself from compassion. Compassion, of course, can in this instance be but awareness of a common suffering and not a frivolous indulgence paying no attention to the sufferings and rights of the victim. Compassion does not exclude punishment, but it suspends the final condemnation. Compassion loathes the definitive, irreparable measure that does an injustice to mankind as a whole because of failing to take into account the wretchedness of the common condition.
To tell the truth, certain juries are well aware of this, for they often admit extenuating circumstances in a crime that nothing can extenuate. This is because the death penalty seems excessive to them in such cases and
8 We congratulated ourselves on having reprieved Sillon, who recently killed his four-year-old daughter in order not to give her to her mother, who wanted a divorce. It was discovered, in fact, during his imprisonment that Sillon was suffering from a brain tumor that might explain the madness of his deed.
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they prefer not punishing enough to punishing too much. The extreme severity of the penalty then favors crime instead of penalizing it. There is not a court session during which we do not read in the press that a verdict is incoherent and that, in view of the facts, it seems either insufficient or excessive. But the jurors are not ignorant of this. However, faced with the enormity of capital punishment, they prefer, as we too should prefer, to look like fools rather than to compromise their nights to come. Knowing themselves to be fallible, they at least draw the appropriate consequences. And true justice is on their side precisely insofar as logic is not.
There are, however, major criminals whom all juries would condemn at any time and in any place whatever. Their crimes are not open to doubt, and the evidence brought by the accusation is confirmed by the confessions of the defense. Most likely, everything that is abnormal and monstrous in them is enough to classify them as pathological. But the psychiatric experts, in the majority of cases, affirm their responsibility. Recently in Paris a young man, somewhat weak in character but kind and affectionate, devoted to his family, was, according to his own admission, annoyed by a remark his
father made about his coming home late. The father was sitting reading at the dining-room table. The young man seized an ax and dealt his father several blows from behind. Then in the same way he struck down his mother, who was in the kitchen. He undressed, hid his bloodstained trousers in the closet, went to make a call on the family of his fiancee, without showing any signs, then returned home and notified the police that he had just
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found his parents murdered. The police immediately discovered the bloodstained trousers and, without difficulty, got a calm confession from the parricide. The psychiatrists decided that this man who murdered through annoyance was responsible. His odd indifference, of which he was to give other indications in prison (showing pleasure because his parents' funeral had attracted so many people—"They were much loved," he told his lawyer), cannot, however, be considered as normal. But his reasoning power was apparently untouched.
Many "monsters" offer equally impenetrable exteriors. They are eliminated on the mere consideration of the facts. Apparently the nature or the magnitude of their crimes allows no room for imagining that they can ever repent or reform. They must merely be kept from doing it again, and there is no other solution but to eliminate them. On this frontier, and on it alone, discussion about the death penalty is legitimate. In all other cases the arguments for capital punishment do not stand up to the criticisms of the abolitionists. But in extreme cases, and in our state of ignorance, we make a wager. No fact, no reasoning can bring together those who think that a chance must always be left to the vilest of men and those who consider that chance illusory. But it is perhaps possible, on that final frontier, to go beyond the long opposition between partisans and adversaries of the death penalty by weighing the advisability of that penalty today, and in Europe. With much less competence, I shall try to reply to the wish expressed by a Swiss jurist, Professor Jean Graven, who wrote in 1952 in his remarkable study on the problem of the death penalty: "Faced with the