Yet these same peaceful creatures furnish society with the largest percentage of its homicides. Many of these honest men are criminals without knowing it. According to one magistrate, the overwhelming majority of the murderers he had tried did not know, when they shaved themselves that morning, that they were going to kill someone that night. For the sake of example and security alike, we should brandish rather than disguise the agonized face of our victim before the eyes of every man as he shaves himself in the morning.
This is not done. The State conceals the circumstances and even the existence of its executions, keeps silent about such reports and such accounts. It does not concern itself with the exemplary value of punishment save by tradition, nor does it trouble to consider the present meaning of its act. The crim-inal is killed because he has been killed for centuries, and furthermore he is killed according to a procedure established at the end of the eighteenth century.
The same arguments that have served as legal tender for centuries are perpetuated as a matter of routine, contradicted only by those measures which the evolution of public sensibility renders inevitable. The law is applied without consideration of its significance, and our condemned criminals die by rote in the name of a theory in which their executioners no longer believe. If they believed in it, it would be known, and above all it would be seen.
But such publicity, beyond the fact that it arouses sadis-tic instincts of which the repercussions are incalculable and which end, one day or another, by satisfying themselves with yet another murder, also risks provoking the disgust and revolt of public opinion itself. It would become more difficult to execute by assembly line, as we do in France at this very moment, if such executions were translated into the bold images of popular fantasy.
The very man who enjoys his morning coffee while reading that justice has been done would certainly choke on it at the slightest of such details. And the texts I have quoted may go far toward supporting the position of certain professors of criminal law who, in their evident incapacity to justify the anachronism of capital pun-ishment, console themselves by declaring with the sociologist Tarde that it is better to kill without causing suffering than it is to cause suffering without killing.
Which is why we can only approve the position of Gambetta, who as an adversary of the death penalty nevertheless voted against a bill pro-posing the exclusion of the public from executions, asserting: «If you do away with the horror of the spectacle, if you per-form executions in the prison yards, you will also do away with the public reaction of revolt which has shown itself in recent years, and thereby establish the death penalty all the more firmly.»
We must either kill publicly, or admit we do not feel au-thorized to kill. If society justifies the death penalty as a necessary example, then it must justify itself by providing the publicity necessary to make an example. Society must display the executioner’s hands on each occasion, and require the most squeamish citizens to look at them, as well as those who, directly or remotely, have supported the work of those hands from the first.
Otherwise society confesses that it kills without consciousness of what it does or what it says; or that it kills yet knows, too, that far from intimidating belief, these disgust-ing ceremonies can only awaken a sense of criminality, and thoroughly undermine public morale. Who could be more ex-plicit than a judge at the end of his career?—Counselor Falco’s courageous confession deserves careful attention: «On only one occasion during my years on the bench I recommended a verdict in favor of execution of the accused and against the commutation of his punishment; I decided that despite my position I would attend the ceremony with complete objectivity, of course.
The man in question was not at all sym-pathetic, not even interesting; he had brutally murdered his little daughter and then thrown her body down a well. Never-theless, after his execution, for weeks, and even for months, my nights were haunted by this memory. . . . I served in the war like everyone else, and I saw an innocent generation killed before my eyes; yet confronted with the memory of that dreadful spectacle, I still can say I never once experienced the same kind of bad conscience I felt as I watched the kind of administrative assassination known as capital punishment.»7
But after all, why should society believe in the value of such an example, since it does not affect the incidence of crime, and since its effects, if they exist at all, are invisible? For capital punishment cannot intimidate a man who does not know he is going to commit murder, who decides on it in an instant and prepares his action in the heat of passion or an idée fixe; cannot intimidate a man who starts off for an assigna-tion carrying with him a weapon to frighten his faithless mis-tress or his rival and then, at the last minute, makes use of it, although without any such intention—or without thinking he had any such intention. In short, capital punishment cannot intimidate the man who throws himself upon crime as one throws oneself into misery. Which is to say that it is ineffective in the majority of cases. It is only fair to point out that in France, at least, capital punishment is rarely applied in cases
of «crimes of passion.» Yet even «rarely» is enough to make one shudder.
But does the death penalty act as a deterrent, at least, upon that «race» of criminals it claims to affect—those who live by crime? Nothing is less certain. Arthur Koestler reminds us that in the period when pickpockets were punished by hanging in England, other thieves exercised their talents in the crowds surrounding the scaffold where their fellow was being hanged. Statistics compiled during the past fifty years in England show that out of 250 men hanged, 170 had previously attended one or even two public executions.
Even as late as 1886, out of 167 men condemned to death in the Bristol prison, 164 had at-tended at least one execution. Figures corresponding to these cannot be ascertained in France because of the secrecy which surrounds executions here. But those we have remind us that in that crowd my father stood among to watch a public execu-tion, there must have been a considerable number of future criminals who did not run home and vomit. The power of intimidation operates only on those timid souls who are not dedicated to crime, and gives way before precisely those in-corrigibles whom it is concerned to correct.
Yet it cannot be denied that men fear death. The depriva-tion of life is certainly the supreme punishment, and arouses in each of us his decisive fear. The fear of death, rising from the obscurest depths, ravages the self; the instinct for life, when threatened, panics and flounders among the most dread-ful agonies. The legislator may with some justice assume that his law affects one of the most mysterious and powerful mo-tives of human nature. But the law is always simpler than nature. When, in its attempt to establish its sovereignty, the law ventures into the blind realms of being, it runs a terrible risk of being impotent to control the very complexity it at-tempts to set in order.
Indeed if the fear of death is one kind of evidence, the fact that this same fear, no matter how great it may be, has never sufficed to discourage human passions, is still another. Bacon was right: no passion is so weak that it cannot confront and master the fear of death. Vengeance, love, honor, grief, even fear of something else—all are victorious over the fear of death in one circumstance or another. And shall cupidity, hatred, or jealousy not accomplish all that love or patriotism or the human passion for liberty are able to achieve? For centuries the death penalty, often acccompanied by various barbarous refinements, has tried to restrain the incidence of crime; yet crime persists. Why?
Because the instincts which confront and war against each other within man are not, as the law would have them, constant forces in a state of equili-brium. They are variable forces that die and triumph one after another, whose successive imbalances nourish the life of the mind in the same way that electrical oscillations, occur-ring with sufficient frequency, establish a current. Consider the series of oscillations passing from desire to satiation, from decision to renunciation, which all of us experience in a single day and then multiply these variations to infinity and we may form an idea of the extent of our psychological pro-liferation.
These imbalances, these disequilibriums are gener-ally too fugitive to permit any one force to gain control of the entire self. Yet it sometimes happens that a single element of the soul’s resources can break free and occupy the entire field of consciousness; no instinct,
