It is infinite in relation to capital punishment. When Hugo writes that to him the name of the guillotine is Lesurques,22 he does not mean that all those who are decapitated are Lesurques, but that one Lesurques is enough for the guillotine to be permanently dishonored. It is understandable that Belgium gave up once and for all pronouncing the death penalty after a judicial error and that England raised the question of abolition after the Hayes case.
It is also possible to understand the conclusions of the Attorney General who, when consulted as to the appeal of a very probably guilty criminal whose victim had not been found, wrote: “The survival of X … gives the authorities the possibility of examining at leisure any new clue that might eventually be brought in as to the existence of his wife.23 … On the other hand, the execution, by canceling that hypothetical possibility of examination, would, I fear, give to the slightest clue a theoretical value, a power of regret that I think it inopportune to create.”
A love of justice and truth is expressed here in a most moving way, and it would be appropriate to quote often in our courts that “power of regret” which so vividly sums up the danger that faces every juror. Once the innocent man is dead, no one can do anything for him, in fact, but to rehabilitate him, if there is still someone to ask for this. Then he is given back his innocence, which, to tell the truth, he had never lost. But the persecution of which he was a victim, his dreadful sufferings, his horrible death have been given him forever. It remains only to think of the innocent men of the future, so that these tortures may be spared them. This was done in Belgium. In France consciences are apparently untroubled.
Probably the French take comfort from the idea that justice has progressed hand in hand with science. When the learned expert holds forth in court, it seems as if a priest has spoken, and the jury, raised in the religion of science, expresses its opinion. However, recent cases, chief among them the Besnard case, have shown us what a comedy of experts is like. Culpability is no better established for having been established in a test tube, even a graduated one.
A second test tube will tell a different story, and the personal equation loses none of its importance in such dangerous mathematics. The proportion of learned men who are really experts is the same as that of judges who are psychologists, hardly any greater than that of serious and objective juries. Today, as yesterday, the chance of error remains. Tomorrow another expert testimony will declare the innocence of some Abbott or other. But Abbott will be dead, scientifically dead, and the science that claims to prove innocence as well as guilt has not yet reached the point of resuscitating those it kills.
Among the guilty themselves, is there any assurance that none but the irretrievable have been killed? All those who, like me, have at a period of their lives necessarily followed the assize courts know that a large element of chance enters into any sentence.
The look of the accused, his antecedents (adultery is often looked upon as an aggravating circumstance by jurors who may or may not all have been always faithful), his manner (which is in his favor only if it is conventional—in other words, play-acting most of the time), his very elocution (the old hands know that one must neither stammer nor be too eloquent), the mishaps of the trial enjoyed in a sentimental key (and the truth, alas, is not always emotionally effective): so many flukes that influence the final decision of the jury.
At the moment of the death verdict, one may be sure that to arrive at the most definite of penalties, an extraordinary combination of uncertainties was necessary. When it is known that the supreme verdict depends on the jury’s evaluation of the extenuating circumstances, when it is known, above all, that the reform of 1832 gave our juries the power of granting indeterminate extenuating circumstances, it is possible to imagine the latitude left to the passing mood of the jurors.
The law no longer foresees precisely the cases in which death is to be the outcome; so the jury decides after the event by guesswork. Inasmuch as there are never two comparable juries, the man who is executed might well not have been. Beyond reclaim in the eyes of the respectable people of Ille-et-Vilaine, he would have been granted a semblance of excuse by the good citizens of the Var. Unfortunately, the same blade falls in the two Départements. And it makes no distinction.
The temporal risks are added to the geographical risks to increase the general absurdity. The French Communist workman who has just been guillotined in Algeria for having put a bomb (discovered before it went off) in a factory locker room was condemned as much because of the general climate as because of what he did. In the present state of mind in Algeria, there was a desire at one and the same time to prove to the Arab opinion that the guillotine was designed for Frenchmen too and to satisfy the French opinion wrought up by the crimes of terrorism. At the same moment, however, the Minister who approved the execution was accepting Communist votes in his electoral district.
If the circumstances had been different, the accused would have got off easy and his only risk, once he had become a Deputy of the party, would be finding himself having a drink at the same bar as the Minister someday. Such thoughts are bitter, and one would like them to remain alive in the minds of our leaders.
They must know that times and customs change; a day comes when the guilty man, too rapidly executed, does not seem so black. But it is too late and there is no alternative but to repent or to forget. Of course, people forget. Nonetheless, society is no less affected. The unpunished crime, according to the Greeks, infected the whole city. But innocence condemned or crime too severely punished, in the long run, soils the city just as much. We know this, in France.
Such, it will be said, is human justice, and, despite its imperfections, it is better than arbitrariness. But that sad evaluation is bearable only in connection with ordinary penalties. It is scandalous in the face of verdicts of death. A classic treatise on French law, in order to excuse the death penalty for not involving degrees, states this: “Human justice has not the slightest desire to assure such a proportion. Why? Because it knows it is frail.” Must we therefore conclude that such frailty authorizes us to pronounce an absolute judgment and that, uncertain of ever achieving pure justice, society must rush headlong, through the greatest risks, toward supreme injustice?
If justice admits that it is frail, would it not be better for justice to be modest and to allow its judgments sufficient latitude so that a mistake can be corrected?24 Could not justice concede to the criminal the same weakness in which society finds a sort of permanent extenuating circumstance for itself? Can the jury decently say: “If I kill you by mistake, you will forgive me when you consider the weaknesses of our common nature. But I am condemning you to death without considering those weaknesses or that nature”?
There is a solidarity of all men in error and aberration. Must that solidarity operate for the tribunal and be denied the accused? No, and if justice has any meaning in this world, it means nothing but the recognition of that solidarity; it cannot, by its very essence, divorce itself from compassion.
Compassion, of course, can in this instance be but awareness of a common suffering and not a frivolous indulgence paying no attention to the sufferings and rights of the victim. Compassion does not exclude punishment, but it suspends the final condemnation. Compassion loathes the definitive, irreparable measure that does an injustice to mankind as a whole because of failing to take into account the wretchedness of the common condition.
To tell the truth, certain juries are well aware of this, for they often admit extenuating circumstances in a crime that nothing can extenuate. This is because the death penalty seems excessive to them in such cases and they prefer not punishing enough to punishing too much. The extreme severity of the penalty then favors crime instead of penalizing it. There is not a court session during which we do not read in the press that a verdict is incoherent and that, in view of the facts, it seems either insufficient or excessive. But the jurors are not ignorant of this. However, faced with the enormity of capital punishment, they prefer, as we too should prefer, to look like fools rather than to compromise their nights to come.
