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 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 intimidating, 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, 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 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 committed. The most sweeping uncertainty
