Resistance, Rebellion, and Death Page 14

  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 in this case authorizes the most implacable certainty.

  I am not the only one to be amazed by such a dangerous contradiction. Even the State condemns it, and such bad conscience explains in turn the contradiction of its own attitude. The State divests its executions of all publicity because it cannot assert, in the face of facts, that they ever served to intimidate criminals. The State cannot escape the dilemma Beccaria described when he wrote: “If it is important to give the people proofs of power often, then executions must be frequent; but crimes will have to be frequent too, and this will prove that the death penalty does not make the complete impression that it should, whence it results that it is both useless and necessary.” What can the State do with a penalty that is useless and necessary, except to hide it without abolishing it? The State will keep it then, a little out of the way, not without embarrassment, in the blind hope that one man at least, one day at least, will be stopped from his murderous gesture by thought of the punishment and, without anyone’s ever knowing it, will justify a law that has neither reason nor experience in its favor. In order to continue claiming that the guillotine is exemplary, the State is consequently led to multiply very real murders in the hope of avoiding a possible murder which, as far as it knows or ever will know, may never be perpetrated. An odd law, to be sure, which knows the murder it commits and will never know the one it prevents.

  What will be left of that power of example if it is proved that capital punishment has another power, and a very real one, which degrades men to the point of shame, madness, and murder?

  It is already possible to follow the exemplary effects of such ceremonies on public opinion, the manifestations of sadism they arouse, the hideous vainglory they excite in certain criminals. No nobility in the vicinity of the gallows, but disgust, contempt, or the vilest indulgence of the senses. These effects are well known. Decency forced the guillotine to emigrate from Place de l’Hotel de Ville to the city gates, then into the prisons. We are less informed as to the feelings of those whose job it is to attend such spectacles. Just listen then to the warden of an English prison who confesses to “a keen sense of personal shame” and to the chaplain who speaks of “horror, shame, and humiliation.”9 Just imagine the feelings of the man who kills under orders—I mean the executioner. What can we think of those officials who call the guillotine “the shunting engine,” the condemned man “the client” or “the parce
l”? The priest Bela Just, who accompanied more than thirty condemned men, writes: “The slang of the administrators of justice is quite as cynical and vulgar as that of the criminals.”10 And here are the remarks of one of our assistant executioners on his journeys to the provinces: “When we would start on a trip, it was always a lark, with taxis and the best restaurants part of the spree!”11 The same one says, boasting of the executioner’s skill in releasing the blade: “You could allow yourself the fun of pulling the client’s hair.” The dissoluteness expressed here has other, deeper aspects. The clothing of the condemned belongs in principle to the executioner. The elder Deibler used to hang all such articles of clothing in a shed and now and then would go and look at them. But there are more serious aspects. Here is what our assistant executioner declares: “The new executioner is batty about the guillotine. He sometimes spends days on end at home sitting on a chair, ready with hat and coat on, waiting for a summons from the Ministry.”12

  Yes, this is the man of whom Joseph de Maistre said that, for him to exist, there had to be a special decree from the divine power and that, without him, “order yields to chaos, thrones collapse, and society disappears.” This is the man through whom society rids itself altogether of the guilty man, for the executioner signs the prison release and takes charge of a free man. The fine and solemn example, thought up by our legislators, at least produces one sure effect—to depreciate or to destroy all humanity and reason in those who take part in it directly. But, it will be said, these are exceptional creatures who find a vocation in such dishonor. They seem less exceptional when we learn that hundreds of persons offer to serve as executioners without pay. The men of our generation, who have lived through the history of recent years, will not be astonished by this bit of information. They know that behind the most peaceful and familiar faces slumbers the impulse to torture and murder. The punishment that aims to intimidate an unknown murderer certainly confers a vocation of killer on many another monster about whom there is no doubt. And since we are busy justifying our cruelest laws with probable considerations, let there be no doubt that out of those hundreds of men whose services were declined, one at least must have satisfied otherwise the bloodthirsty instincts the guillotine excited in him.

  If, therefore, there is a desire to maintain the death penalty, let us at least be spared the hypocrisy of a justification by example. Let us be frank about that penalty which can have no publicity, that intimidation which works only on respectable people, so long as they are respectable, which fascinates those who have ceased to be respectable and debases or deranges those who take part in it. It is a penalty, to be sure, a frightful torture, both physical and moral, but it provides no sure example except a demoralizing one. It punishes, but it forestalls nothing; indeed, it may even arouse the impulse to murder. It hardly seems to exist, except for the man who suffers it—in his soul for months and years, in his body during the desperate and violent hour when he is cut in two without suppressing his life. Let us call it by the name which, for lack of any other nobility, will at least give the nobility of truth, and let us recognize it for what it is essentially: a revenge.

  A punishment that penalizes without forestalling is indeed called revenge. It is a quasi-arithmetical reply made by society to whoever breaks its primordial law. That reply is as old as man; it is called the law of retaliation. Whoever has done me harm must suffer harm; whoever has put out my eye must lose an eye; and whoever has killed must die. This is an emotion, and a particularly violent one, not a principle. Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature. If murder is in the nature of man, the law is not intended to imitate or reproduce that nature. It is intended to correct it. Now, retaliation does no more than ratify and confer the status of a law on a pure impulse of nature. We have all known that impulse, often to our shame, and we know its power, for it comes down to us from the primitive forests. In this regard, we French, who are properly indignant upon seeing the oil king in Saudi Arabia preach international democracy and call in a butcher to cut off a thief’s hand with a cleaver, live also in a sort of Middle Ages without even the consolations of faith. We still define justice according to the rules of a crude arithmetic.13 Can it be said at least that that arithmetic is exact and that justice, even when elementary, even when limited to legal revenge, is safeguarded by the death penalty? The answer must be no.

  Let us leave aside the fact that the law of retaliation is inapplicable and that it would seem just as excessive to punish the incendiary by setting fire to his house as it would be insufficient to punish the thief by deducting from his bank account a sum equal to his theft. Let us admit that it is just and necessary to compensate for the murder of the victim by the death of the murderer. But beheading is not simply death. It is just as different, in essence, from the privation of life as a concentration camp is from prison. It is a murder, to be sure, and one that arithmetically pays for the murder committed. But it adds to death a rule, a public premeditation known to the future victim, an organization, in short, which is in itself a source of moral sufferings more terrible than death. Hence there is no equivalence. Many laws consider a premeditated crime more serious than a crime of pure violence. But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

  There, too, when our official jurists talk of putting to death without causing suffering, they don’t know what they are talking about and, above all, they lack imagination. The devastating, degrading fear that is imposed on the condemned for months or years14 is a punishment more terrible than death, and one that was not imposed on the victim. Even in the fright caused by the mortal violence being done to him, most of the time the victim is hastened to his death without knowing what is happening to him. The period of horror is counted out with his life, and hope of escaping the madness that has swept down upon that life probably never leaves him. On the other hand, the horror is parceled out to the man who is condemned to death. Torture through hope alternates with the pangs of animal despair. The lawyer and chaplain, out of mere humanity, and the jailers, so that the condemned man will keep quiet, are unanimous in assuring him that he will be reprieved. He believes this with all his being and then he ceases to believe it. He hopes by day and despairs of it by night.15 As the weeks pass, hope and despair increase and become equally unbearable. According to all accounts, the color of the skin changes, fear acting like an acid. “Knowing that you are going to die is nothing,” said a condemned man in Fresnes. “But not knowing whether or not you are going to live, that’s terror and anguish.” Cartouche said of the supreme punishment: “Why, it’s just a few minutes that have to be lived through.” But it is a matter of months, not of minutes. Long in advance the condemned man knows that he is going to be killed and that the only thing that can save him is a reprieve, rather similar, for him, to the decrees of heaven. In any case, he cannot intervene, make a plea himself, or convince. Everything goes on outside of him. He is no longer a man but a thing waiting to be handled by the executioners. He is kept as if he were inert matter, but he still has a consciousness which is his chief enemy.

  When the officials whose job it is to kill that man call him a parcel, they know what they are saying. To be unable to do anything against the hand that moves you from one place to another, holds you or rejects you, is this not indeed being a parcel, or a thing, or, better, a hobbled animal? Even then an animal can refuse to eat. The condemned man cannot. He is given the benefit of a special diet (at Fresnes, Diet No. 4 with extra milk, wine, sugar, jam, butter); they see to it that he nourishes himself. If need be, he is forced to do so. The animal that is going to be killed m
ust be in the best condition. The thing or the animal has a right only to those debased freedoms that are called whims. “They are very touchy,” a top-sergeant at Fresnes says without the least irony of those condemned to death. Of course, but how else can they have contact with freedom and the dignity of the will that man cannot do without? Touchy or not, the moment the sentence has been pronounced the condemned man enters an imperturbable machine. For a certain number of weeks he travels along in the intricate machinery that determines his every gesture and eventually hands him over to those who will lay him down on the killing machine. The parcel is no longer subject to the laws of chance that hang over the living creature but to mechanical laws that allow him to foresee accurately the day of his beheading.

  That day his being an object comes to an end. During the three quarters of an hour separating him from the end, the certainty of a powerless death stifles everything else; the animal, tied down and amenable, knows a hell that makes the hell he is threatened with seem ridiculous. The Greeks, after all, were more humane with their hemlock. They left their condemned a relative freedom, the possibility of putting off or hastening the hour of his death. They gave him a choice between suicide and execution. On the other hand, in order to be doubly sure, we deal with the culprit ourselves. But there could not really be any justice unless the condemned, after making known his decision months in advance, had approached his victim, bound him firmly, informed him that he would be put to death in an hour, and had finally used that hour to set up the apparatus of death. What criminal ever reduced his victim to such a desperate and powerless condition?