To cut short this question of the law of retaliation, we must note that even in its primitive form it can operate only between two individuals of whom one is absolutely innocent and the other absolutely guilty. The victim, to be sure, is innocent. But can the society that is supposed to represent the victim lay claim to innocence? Is it not responsible, at least in part, for the crime it punishes so severely? This theme has often been developed, and I shall not repeat the arguments that all sorts of thinkers have brought forth since the eighteenth century. They can be summed up anyway by saying that every society has the criminals it deserves. But insofar as France is concerned, it is impossible not to point out the circumstances that ought to make our legislators more modest.
Answering an inquiry of the Figaro in 1952 on the death penalty, a colonel asserted that establishing hard labor for life as the most severe penalty would amount to setting up schools of crime. That high-ranking officer seemed to be ignorant, and I can only congratulate him, of the fact that we already have our schools of crime, which differ from our federal prisons in this notable regard: it is possible to leave them at any hour of the day or night; they are the taverns and slums, the glory of our Republic. On this point it is impossible to express oneself moderately.
Statistics show 64,000 overcrowded dwellings (from three to five persons per room) in the city of Paris alone. To be sure, the killer of children is a particularly vile creature who scarcely arouses pity. It is probable, too (I say probable), that none of my readers, forced to live in the same conditions, would go so far as to kill children. Hence there is no question of reducing the culpability of certain monsters. But those monsters, in decent dwellings, would perhaps have had no occasion to go so far.
The least that can be said is that they are not alone guilty, and it seems strange that the right to punish them should be granted to the very people who subsidize, not housing, but the growing of beets for the production of alcohol.19
But alcohol makes this scandal even more shocking. It is known that the French nation is systematically intoxicated by its parliamentary majority, for generally vile reasons. Now, the proportion of alcohol’s responsibility in the cause of bloodthirsty crimes is shocking.
A lawyer (Maître Guillon) estimated it at 60 per cent. For Dr. Lagriffe the proportion extends from 41.7 to 72 per cent. An investigation carried out in 1951 in the clearing-center of the Fresnes prison, among the common-law criminals, showed 29 per cent to be chronic alcoholics and 24 per cent to have an alcoholic inheritance. Finally, 95 per cent of the killers of children are alcoholics. These are impressive figures.
We can balance them with an even more magnificent figure: the tax report of a firm producing apéritifs, which in 1953 showed a profit of 410 million francs. Comparison of these figures justifies informing the stockholders of that firm and the Deputies with a financial interest in alcohol that they have certainly killed more children than they think. As an opponent of capital punishment, I am far from asking that they be condemned to death. But, to begin with, it strikes me as indispensable and urgent to take them under military escort to the next execution of a murderer of children and to hand them on their way out a statistical report including the figures I have given.
The State that sows alcohol cannot be surprised to reap crime.20 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 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 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 especially, 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 eliminative only insofar as it is irreparable? The 15th 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.21 At eleven o’clock the appeal was refused. At 11:15 Abbott entered 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
