But life is not still-life, is not stable, not serene. Which is why, surprising as it may seem to those who have not ob-served or experienced in themselves the complexity of the human situation, the murderer for the most part considers himself innocent when he commits his crime. Before being judged, the criminal acquits himself. He feels he is if not entirely within his rights—at least extenuated by circum-stances. He does not reflect; he does not foresee; or if he does, it is only to foresee that he will be pardoned—altogether or in part. Why should he fear what he regards as highly un-likely? He will fear death after being judged, not before his crime. Therefore, in order to intimidate effectively, the law must permit the murderer no escape, must be implacable in advance, must admit no possibility of an extenuating circum-stance. Who among us would dare to demand this?
And even if we did, there is still another paradox of human nature to consider. The instinct of self-preservation, if it is a fundamental one, is no more so than that other instinct less often discussed by academic psychologists: the death instinct which at certain times demands the destruction of the self or of others. It is probable that the desire to kill frequently co-incides with the desire to die or to kill oneself.8 The instinct of self preservation thus finds itself confronted in variable proportions by the instinct for self destruction.
The latter is the only means by which we can altogether explain the numerous perversions which from alcoholism to drug addiction lead the self to a destruction of which it cannot long remain ignorant. Man desires to live, but it is vain to hope that this desire can control all his actions. He desires to be annihilated as well—he wills the irreparable, death for its own sake. It so happens that the criminal desires not only his crime, but the misery that accompanies it, especially if this misery is un-bounded and inordinate. When this perverse desire grows until it gains control of the self, the prospect of being put to death is not only impotent to restrain the criminal, but probably deepens even further the abyss into which he plunges: there are situations in which one kills in order to die.
Such singularities suffice to explain how a punishment that seems calculated to intimidate the normal mind has in reality nothing whatever to do with ordinary psychological processes.
All statistics show, without exception—in the countries which have abolished it, as well as in the others—that there is no connection between the death penalty and the incidence of crime.9 This incidence, in fact, neither rises nor falls. The guillotine exists; crime exists: between them there is no other apparent connection than that of the law. All we are entitled to conclude from the figures provided by statisticians is this: for centuries crimes other than murder were punished by death, and this supreme punishment, deliberately repeated, caused none of these crimes to disappear.
For several centu-ries these crimes have no longer been punished by death, yet they have not increased in number, and the incidence of some has even diminished. Similarly, murder has been punished by capital punishment for centuries, yet the race of Cain has not disappeared from the earth. In the thirty-three nations that have abolished the death penalty or no longer impose it, the number of murders has not increased. How can we there-fore conclude that the death penalty is really intimidating?
Its partisans can deny neither these facts nor these figures. Their only and ultimate reply is significant; it explains the paradoxical attitude of a society which so carefully conceals the executions it claims as exemplary: «It is true that nothing proves that the death penalty is exemplary; it is even certain that thousands of murderers have not been intimidated by it. But we cannot know who has been intimidated by such a penalty; consequently, nothing proves that it does not serve as an example.»
Thus the greatest of all punishments, the penalty that involves the ultimate forfeiture of the condemned man and concedes the supreme privilege to society, rests on nothing more than an unverifiable possibility. Death, however, does not admit of degrees of likelihood; it fixes all things blame and body alike in its definitive rigidity. Yet it is ad-ministered in our country in the name of a possibility, a calculation of likelihood. And even if this possibility should be reasonable, would it not have to be certitude itself to authorize certain and absolute extinction? Yet the man we condemn to die is cut in two not so much for the crime he has committed as for the sake of all the crimes that might have happened, but which have not happened—which could occur, but somehow will not occur. Hence, the greatest possible uncertainty ap-pears to authorize the most implacable certitude of all.
I am not the only one to be astonished by this dangerous contradiction. The State itself disapproves, and its bad con-science explains in turn all the contradictions of the official attitude. This attitude suppresses the publicity of executions because it cannot affirm, faced with the facts, that they have ever served to intimidate criminals. It cannot escape the dilemma which Beccaria had already pointed to when he wrote: «If it is important to show the people frequent proof of power, then executions must be frequent; but in that case crimes must be frequent too, which will prove that the death penalty is far from making the desired impression; thus this penalty is at the same time useless and necessary.»
What can the State do about a punishment both useless and necessary, except conceal it without abolishing it? And so it will be preserved in obscurity, continued with perplexity and hesitation, in the blind hope that one man at least, one day at least, will be intimidated by consideration of the punishment that lies ahead, and will abandon his murderous intent, thereby justifying, though no one will ever know it, a law which has no support in reason or experience. To persist in its claim that the guil-lotine is exemplary, the State must raise the incidence of real murders in order to avoid an unknown murder of which it cannot be sure (will never be sure) that it would ever have been committed at all. Is it not a strange law, that recognizes the murder it commits, and remains forever ignorant of the crime it prevents?
But what will remain of this power of example, if it is proved that capital punishment has another power, this one quite real, which degrades men to the worst excesses of shame, madness, and murder?
The exemplary effects of these ceremonies can readily be traced in public opinion—the manifestations of sadism they reveal, the terrible notoriety they arouse in the case of certain criminals. Instead of an operatic nobility of attitude at the foot of the scaffold, we find nothing but disgust, contempt, or perverse pleasure. The effects are well known. Propriety too has had its share in effecting the removal of the scaffold from the square in front of the city hall to the city walls, and from the walls to the prison yard. We are less well informed about the sentiments of those whose business it is to attend this kind of spectacle.
Let us listen to the words of the director of an English prison, who speaks of «an acute sense of personal shame,» of a prison chaplain who speaks of «horror, shame, and humiliation»;10 and let us consider especially the feelings of the man who kills because it is his trade—I mean the executioner. What shall we think of these civil servants of ours, who refer to the guillotine as «the bike,» the condemned man as «the client» or «luggage,» except, in the words of the priest Bela Just, who served as prison chaplain for more than thirty executions, that «The idiom of the executors of justice yields nothing in point of cynicism or vulgarity to that of its violators.»11 Here, furthermore, are the reflections of one of our assistant executioners on his official travels across the country: «When it came time for our trips to the provinces, the real fun began: taxis, good restaurants, everything we wanted!»12
The same man, boasting of the executioner’s skill in releasing the knife, says: «One can indulge oneself in the luxury of pulling the client’s hair.» The depravity expressed here has other, more profound aspects. The clothing of the condemned man belongs, by custom, to the executioner. We learn that old father Deibler hung all the clothing he had collected in a shack and that he used to go look at his collection from time to time. There are more serious examples. Here is our assistant executioner again: «The new executioner has guillotine fever. Sometimes he stays at home for days at a time, sitting in a chair, ready to go, his hat on his head, his overcoat on, waiting for a summons from the public prosecutor.»13
And this is the man of whom Joseph de Maistre said that his very existence was accorded by a special decree of divine power and that without him, «order gives way to chaos, thrones collapse, and society disappears.» This is the man by means of whom society gets
