There is nothing left to do but consider the innocent men of the future, in order to spare them such torments. It has been done in Belgium; but in France, apparently, there are no bad consciences.
Why should our consciences be bad if they are based on our conception of justice: has not this conception made great progress, does it not follow in the footsteps of science itself? When the learned expert gives his opinion in the assize courts, it is as if a priest had spoken, and the jury, raised in the reli-gion of science—the jury nods. Nevertheless several recent cases—particularly the Besnard affair—have given us a good idea of the comedy such expertise can provide. Guilt is not better established because it can be demonstrated in a test tube.
Another test tube can prove the contrary, and the per-sonal equation will thereby maintain all its old significance in such perilous mathematics as these. The proportion of sci-entists who are really experts is the same as that of judges who are really psychologists—scarcely more than that of juries that are really serious and objective. Today, as yesterday, the chance of error remains. Tomorrow another expert’s report will proclaim the innocence of another Abbott. But Abbott will be dead, scientifically enough, and science, which claims to prove innocence as well as guilt, has not yet succeeded in restoring the life it has taken.
And among the guilty themselves, can we also be sure of having killed only «irrecoverables»? Those who like myself have had to attend hearings in our assize courts know that a number of elements of sheer accident enter into a sen-tence, even a death sentence. The looks of the accused; his background (adultery is often regarded as an incriminating circumstance by some jurors: I have never been able to be-lieve that all are completely faithful to their wives and hus-bands); his attitude (which is only regarded as being in his favor if it is as conventional as possible, which usually means as near play-acting as possible); even his elocution (one must neither stutter nor speak too well) and the incidents of the hearing sentimentally evaluated (the truth, unfortunately, is not always moving)—all these are so many accidents that in-fluence the final decision of a jury.
At the moment the verdict recommending the death penalty is pronounced, one can be sure that this most certain of punishments has only been arrived at by a great conjunction of uncertainties. When one realizes that the verdict of death depends on the jury’s estimation of the extenuating circumstances, particularly since the reforms of 1832 gave our juries the power to admit undetermined ex-tenuating circumstances, one can appreciate the margin left to the momentary humors of the jurors. It is no longer the law which establishes with any precision those cases in which the death penalty is recommended, but the jury which, after the event, estimates its suitability by guesswork, to say the least. As there are no two juries alike, the man who is exe-cuted might as well have been spared. Irrecoverable in the eyes of the honest citizens of Île-et-Vilaine, he might well be granted the shadow of an excuse by the good people of Var. Unfortunately, the same knife falls in both departments. And it is not concerned with such details.
The accidents of the times combine with those of geography to reinforce the general absurdity. The communist French worker who was just guillotined in Algeria for having planted a bomb, discovered before it could explode, in the cloakroom of a factory was condemned as much by his act as by the times, for in the Algerian situation at present, Arab public opinion was to be shown that the guillotine was made for French necks too, and French public opinion, outraged by terrorist activities, was to be given satisfaction at the same time. Nevertheless, the minister in charge of the execution counted many com-munist votes in his constituency, and if the circumstances had been slightly different, the accused would have got off lightly and perhaps one day, as his party’s deputy, might have found himself drinking at the same bar as the minister.
Such thoughts are bitter and one might wish they remained fresh a little longer in the minds of our governors. These gentle-men should be aware that times and manners change; a day comes along when the criminal who was executed too quickly no longer seems quite so guilty. By then it is too late, and what can you do but repent or forget? Naturally, one forgets. But society is nonetheless affected: one unpunished crime, according to the Greeks, infects the whole city. Innocence condemned to death, or crime excessively punished, leaves a stain no less hideous in the long run. We know it, in France.
Such is the nature of human justice, it will be said, and despite its imperfections, after all, even human justice is better than the operation of despotism or chance. But this rueful preference is tolerable only in relation to moderate punishment. Confronted by death sentences, it is a scandal. A classic work on French law excuses the death penalty from being subject to degree in the following words: «Human jus-tice has not the slightest ambition to insure proportion of this nature. Why?
Because it knows itself to be imperfect.» Must we therefore conclude that this imperfection authorizes us to pronounce an absolute judgment, and that society, un-certain of realizing justice in its pure state, must rush head-long with every likelihood of error, upon the supreme injustice? If human justice knows itself to be imperfect, might not that knowledge be more suitably and modestly demonstrated by leaving a sufficient margin around our condemna-tions for the eventual reparation of error?24
This very weakness in which human justice finds extenuating circumstances for itself in every case and on every occasion—is it not to be accorded to the criminal himself as well? Can the jury in all decency say, «If we condemn you to death by mistake, you will surely forgive us in consideration of the weaknesses of the human nature we all share. But we never-theless condemn you to death without the slightest consider-ation of these weaknesses or of this common nature»?
All men have a community in error and in aberration. Yet must this community operate in behalf of the tribunal and be denied to the accused? No, for if justice has any meaning in this world, it is none other than the recognition of this very community: it cannot, in its very essence, be separated from compassion. Let it be understood that by compassion I mean only the consciousness of a common suffering, not a frivolous indulgence that takes no account of the sufferings and rights of the victim. Compassion does not exclude punishment, but it withholds an ultimate condemnation. It is revolted by the definitive, irreparable measure that does injustice to man in general since it does not recognize his share in the misery of the common condition.
As a matter of fact, certain juries know this well enough, and often admit the extenuating circumstances of a crime which nothing can extenuate. This is because they regard the death penalty as too extreme and prefer to punish insuffi-ciently rather than to excess. In such cases, the extreme sever-ity of the punishment tends to sanction crime instead of penal-izing it. There is scarcely one session of the assize courts of which one cannot read in our press that a verdict is inco-herent, that in the face of the facts it appears either insuffi-cient or excessive. The jurors are not unaware of this. They simply prefer, as we should do ourselves, when confronted with the enormity of capital punishment, to appear confused, rather than compromise their sleep for nights to come. Know-ing themselves imperfect, at least they draw the appropriate consequences. And true justice is on their side, precisely to the degree that logic is not.
There are, however, great criminals that every jury will condemn, no matter where and when they are tried. Their crimes are certain, and the proofs elicited by the prosecution correspond with the admissions of the defense. What is ab-normal and even monstrous in their crimes unquestionably determines their category as pathological, though in the majority of such, cases psychiatrists affirm the criminal’s respon-sibility. Recently, in Paris, a young man of rather weak character, but known for the sweetness and affection of his nature and his extreme devotion to his family, described him self as being annoyed by his father’s remarks on the lateness of the hours he had been keeping.
The father was reading at the dining-room table. The young man took an axe and struck his father several mortal blows with it from behind. Then, in the same fashion, he struck down his mother, who was in the kitchen. He removed his bloody trousers and hid them in the closet, changed his clothes, and after paying a visit to the family of his fiancee without revealing the slightest dis-composure, returned to his own house and informed the police his parents had been murdered. The police immediately dis-covered the bloody trousers, and easily obtained the parri-cide’s unperturbed confession.
The psychiatrists agreed on his responsibility for these «murders by irritation.» The young man’s strange indifference, of which he gave other indications in prison (rejoicing that his parents’ funeral had been so well attended: «Everyone liked them,» he said to his lawyers), can nevertheless scarcely be considered as normal. But his reason was apparently intact.
Many «monsters» offer a countenance just as impenetrable. They are therefore eliminated upon consideration of the facts alone. Because of the nature or the
