There are, however, major criminals whom all juries would condemn at any time and in any place whatever. Their crimes are not open to doubt, and the evidence brought by the accusation is confirmed by the confessions of the defense. Most likely, everything that is abnormal and monstrous in them is enough to classify them as pathological. But the psychiatric experts, in the majority of cases, affirm their responsibility.
Recently in Paris a young man, somewhat weak in character but kind and affectionate, devoted to his family, was, according to his own admission, annoyed by a remark his father made about his coming home late. The father was sitting reading at the dining-room table. The young man seized an ax and dealt his father several blows from behind. Then in the same way he struck down his mother, who was in the kitchen. He undressed, hid his bloodstained trousers in the closet, went to make a call on the family of his fiancée, without showing any signs, then returned home and notified the police that he had just found his parents murdered.
The police immediately discovered the bloodstained trousers and, without difficulty, got a calm confession from the parricide. The psychiatrists decided that this man who murdered through annoyance was responsible. His odd indifference, of which he was to give other indications in prison (showing pleasure because his parents’ funeral had attracted so many people—“They were much loved,” he told his lawyer), cannot, however, be considered as normal. But his reasoning power was apparently untouched.
Many “monsters” offer equally impenetrable exteriors. They are eliminated on the mere consideration of the facts. Apparently the nature or the magnitude of their crimes allows no room for imagining that they can ever repent or reform. They must merely be kept from doing it again, and there is no other solution but to eliminate them. On this frontier, and on it alone, discussion about the death penalty is legitimate. In all other cases the arguments for capital punishment do not stand up to the criticisms of the abolitionists. But in extreme cases, and in our state of ignorance, we make a wager.
No fact, no reasoning can bring together those who think that a chance must always be left to the vilest of men and those who consider that chance illusory. But it is perhaps possible, on that final frontier, to go beyond the long opposition between partisans and adversaries of the death penalty by weighing the advisability of that penalty today, and in Europe.
With much less competence, I shall try to reply to the wish expressed by a Swiss jurist, Professor Jean Graven, who wrote in 1952 in his remarkable study on the problem of the death penalty: “Faced with the problem that is once more confronting our conscience and our reason, we think that a solution must be sought, not through the conceptions, problems, and arguments of the past, nor through the hopes and theoretical promises of the future, but through the ideas, recognized facts, and necessities of the present.”25 It is possible, indeed, to debate endlessly as to the benefits or harm attributable to the death penalty through the ages or in an intellectual vacuum. But it plays a role here and now, and we must take our stand here and now in relation to the modern executioner. What does the death penalty mean to the men of the mid-century?
To simplify matters, let us say that our civilization has lost the only values that, in a certain way, can justify that penalty and, on the other hand, suffers from evils that necessitate its suppression. In other words, the abolition of the death penalty ought to be asked for by all thinking members of our society, for reasons both of logic and of realism.
Of logic, to begin with. Deciding that a man must have the definitive punishment imposed on him is tantamount to deciding that that man has no chance of making amends. This is the point, to repeat ourselves, where the arguments clash blindly and crystallize in a sterile opposition. But it so happens that none among us can settle the question, for we are all both judges and interested parties. Whence our uncertainty as to our right to kill and our inability to convince each other. Without absolute innocence, there is no supreme judge.
Now, we have all done wrong in our lives even if that wrong, without falling within the jurisdiction of the laws, went as far as the unknown crime. There are no just people—merely hearts more or less lacking in justice. Living at least allows us to discover this and to add to the sum of our actions a little of the good that will make up in part for the evil we have added to the world. Such a right to live, which allows a chance to make amends, is the natural right of every man, even the worst man. The lowest of criminals and the most upright of judges meet side by side, equally wretched in their solidarity.
Without that right, moral life is utterly impossible. None among us is authorized to despair of a single man, except after his death, which transforms his life into destiny and then permits a definitive judgment. But pronouncing the definitive judgment before his death, decreeing the closing of accounts when the creditor is still alive, is no man’s right. On this limit, at least, whoever judges absolutely condemns himself absolutely.
Bernard Fallot of the Masuy gang, working for the Gestapo, was condemned to death after admitting the many terrible crimes of which he was guilty, and declared himself that he could not be pardoned. “My hands are too red with blood,” he told a prison mate.26 Public opinion and the opinion of his judges certainly classed him among the irremediable, and I should have been tempted to agree if I had not read a surprising testimony. This is what Fallot said to the same companion after declaring that he wanted to die courageously: “Shall I tell you my greatest regret? Well, it is not having known the Bible I now have here. I assure you that I wouldn’t be where I now am.”
There is no question of giving in to some conventional set of sentimental pictures and calling to mind Victor Hugo’s good convicts. The age of enlightenment, as people say, wanted to suppress the death penalty on the pretext that man was naturally good. Of course he is not (he is worse or better). After twenty years of our magnificent history we are well aware of this. But precisely because he is not absolutely good, no one among us can pose as an absolute judge and pronounce the definitive elimination of the worst among the guilty, because no one of us can lay claim to absolute innocence. Capital judgment upsets the only indisputable human solidarity—our solidarity against death—and it can be legitimized only by a truth or a principle that is superior to man.
In fact, the supreme punishment has always been, throughout the ages, a religious penalty. Inflicted in the name of the king, God’s representative on earth, or by priests or in the name of society considered as a sacred body, it denies, not human solidarity, but the guilty man’s membership in the divine community, the only thing that can give him life. Life on earth is taken from him, to be sure, but his chance of making amends is left him. The real judgment is not pronounced; it will be in the other world. Only religious values, and especially belief in eternal life, can therefore serve as a basis for the supreme punishment because, according to their own logic, they keep it from being definitive and irreparable. Consequently, it is justified only insofar as it is not supreme.
The Catholic Church, for example, has always accepted the necessity of the death penalty. It inflicted that penalty itself, and without stint, in other periods. Even today it justifies it and grants the State the right to apply it. The Church’s position, however subtle, contains a very deep feeling that was expressed directly in 1937 by a Swiss National Councillor from Fribourg during a discussion in the National Council. According to M. Grand, the lowest of criminals when faced with execution withdraws into himself. “He repents and his preparation for death is thereby facilitated. The Church has saved one of its members and fulfilled its divine mission.
This is why it has always accepted the death penalty, not only as a means of self-defense, but as a powerful means of salvation.27 … Without trying to make of it a thing of the Church, the death penalty can point proudly to its almost divine efficacy, like war.”
By virtue of the same reasoning, probably, there could be read on the sword of the Fribourg executioner the words: “Lord Jesus, thou art the judge.” Hence the executioner is invested with a sacred function. He is the man who destroys the body in order to deliver the soul to the divine sentence, which no one can judge beforehand. Some may think that such words imply rather scandalous confusions. And, to be sure, whoever clings to the teaching of Jesus will look upon that handsome sword as one more outrage to the person of Christ. In the light of this, it is possible to understand the dreadful remark of the Russian condemned man about to be hanged by the Tsar’s executioners in 1905 who said firmly to
