Resistance, Rebellion, and Death Page 16
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. Knowing themselves to be fallible, they at least draw the appropriate consequences. And true justice is on their side precisely insofar as logic is not.
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 thi
s 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 the priest who had come to console him with the image of Christ: “Go away and commit no sacrilege.” The unbeliever cannot keep from thinking that men who have set at the center of their faith the staggering victim of a judicial error ought at least to hesitate before committing legal murder. Believers might also be reminded that Emperor Julian, before his conversion, did not want to give official offices to Christians because they systematically refused to pronounce death sentences or to have anything to do with them. For five centuries Christians therefore believed that the strict moral teaching of their master forbade killing. But Catholic faith is not nourished solely by the personal teaching of Christ. It also feeds on the Old Testament, on St. Paul, and on the Church Fathers. In particular, the immortality of the soul and the universal resurrection of bodies are articles of dogma. As a result, capital punishment is for the believer a temporary penalty that leaves the final sentence in suspense, an arrangement necessary only for terrestrial order, an administrative measure which, far from signifying the end for the guilty man, may instead favor his redemption. I am not saying that all believers agree with this, and I can readily imagine that some Catholics may stand closer to Christ than to Moses or St. Paul. I am simply saying that faith in the immortality of the soul allowed Catholicism to see the problem of capital punishment in very different terms and to justify it.
But what is the value of such a justification in the society we live in, which in its institutions and its customs has lost all contact with the sacred? When an atheistic or skeptical or agnostic judge inflicts the death penalty on an unbelieving criminal, he is pronouncing a definitive punishment that cannot be reconsidered. He takes his place on the throne of God,28 without having the same powers and even without believing in God. He kills, in short, because his ancestors believed in eternal life. But the society that he claims to represent is in reality pronouncing a simple measure of elimination, doing violence to the human community united against death, and taking a stand as an absolute value because society is laying claim to absolute power. To be sure, it delegates a priest to the condemned man, through tradition. The priest may legitimately hope that fear of punishment will help the guilty man’s conversion. Who can accept, however, that such a calculation should justify a penalty most often inflicted and received in a quite different spirit? It is one thing to believe before being afraid and another to find faith after fear. Conversion through fire or the guillotine will always be suspect, and it may seem surprising that the Church has not given up conquering infidels through terror. In any case, society that has lost all contact with the sacred can find no advantage in a conversion in which it professes to have no interest. Society decrees a sacred punishment and at the same time divests it both of excuse and of usefulness. Society proceeds sovereignly to eliminate the evil ones from her midst as if she were virtue itself. Like an honorable man killing his wayward son and remarking: “Really, I didn’t know what to do with him.” She assumes the right to select as if she were nature herself and to add great sufferings to the elimination as if she were a redeeming god.
To assert, in any case, that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good, and no one in his right mind will believe this today. Instead of believing this, people will more readily think the reverse. Our society has become so bad and so criminal only because she has respected nothing but her own preservation or a good reputation in history. Society has indeed lost all contact with the sacred. But society began in the nineteenth century to find a substitute for religion by proposing herself as an object of adoration. The doctrines of evolution and the notions of selection that accompany them have made of the future of society a final end. The political utopias that were grafted ont
o those doctrines placed at the end of time a golden age that justified in advance any enterprises whatever. Society became accustomed to legitimizing what might serve her future and, consequently, to making use of the supreme punishment in an absolute way. From then on, society considered as a crime and a sacrilege anything that stood in the way of her plan and her temporal dogmas. In other words, after being a priest, the executioner became a government official. The result is here all around us. The situation is such that this mid-century society which has lost the right, in all logic, to decree capital punishment ought now to suppress it for reasons of realism.
In relation to crime, how can our civilization be defined? The reply is easy: for thirty years now, State crimes have been far more numerous than individual crimes. I am not even speaking of wars, general or localized, although bloodshed too is an alcohol that eventually intoxicates like the headiest of wines. But the number of individuals killed directly by the State has assumed astronomical proportions and infinitely outnumbers private murders. There are fewer and fewer condemned by common law and more and more condemned for political reasons. The proof is that each of us, however honorable he may be, can foresee the possibility of being someday condemned to death, whereas that eventuality would have seemed ridiculous at the beginning of the century. Alphonse Karr’s witty remark: “Let the noble assassins begin” has no meaning now. Those who cause the most blood to flow are the same ones who believe they have right, logic, and history on their side.