PROBATION junior ● 45 BOOK REVIEW: Reflections on the death penalty by Arthur Koestler and Albert Camus 9 Cecilia POPA 10 Grundtvig Assistant UK The death penalty has been an ample debated subject over the years, and, unfortunately, the present fails to conclude its existence. We kill in the name of law and we shrug shoulders when we are wrong, convicting innocent people. The reflections on the death penalty written by Arthur Koestler and Albert Camus, with a strict reference to their countries, England and France, are meant to justify the 17th, 18th, 19th and 20th centuries. But because we still have the capital punishment in the 21 st century, it is extremely important to understand what these great moralists have said and ask ourselves how truly necessary is the death penalty. “At about five o’clock, the prisoner was placed on an eight and a half foot square scaffold. He was tied with thick ropes, trapped in iron hoops, which fixated his arms and legs. One of his hands was burnt in a heating dish filled with burning sulfur; then he was skinned with large red, hot tongs on arms, legs, and chest. They shed molten resinous pitch and boiled oil on all wounds. These tortures, repeatedly, snatched terrible screams from him. Four strong horses, whipped by four aid executioners, pulled the ropes that were rubbing the bleeding and swelling wounds of the sufferer; pulling the ropes lasted for an hour. The limbs were elongated, but were not separated; thus, the executioners cut some muscles; and the limbs were separated one by one. Damiens, who had lost two legs and an arm, was still breathing and he gave his last breath only when all his parts got separated, from his bleeding torso to his last arm.” 11 Reflections on the death penalty The book, given its scale, is divided into three sections. In addition to the written entries by Jean Bloch-Michel, the 1979 and 1957 editions contain annexed documents. The first section of the book captures the reflections on hanging by Arthur Koestler, the second presents the reflections on the guillotine by Albert Camus, and the third section, by Jean Bloch-Michel, reflects on the death penalty 9 The present article is a translation of the Romanian article ‘Recenzie: Reflecţii asupra pedepsei cu moartea de Arthur Koestler și Albert Camus, by Cecilia Popa, published in PROBATION junior, vol. IV, no. 1, 2012. 10 [email protected]11 The description of Robert-Francois Damiens’ execution from 1757 by Voltaire in Histoire du Parlement de Paris, (The history of the Paris Parliament) cap. 67. (p. 176) Damiens was the valet of the King Ludovic XVI of France, and on January 5 th , 1757 he tried to assassinate the sovereign with a knife, but he only managed to hurt him. For the deed he was accused of regicide and his execution remains in the history of the death penalty as one of the most horrific executions.
Transcript
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BOOK REVIEW: Reflections on the death penalty by Arthur Koestler and Albert Camus9
Cecilia POPA10
Grundtvig Assistant UK
The death penalty has been an ample debated subject over the years, and, unfortunately, the present fails to conclude its existence. We kill in the name of law and we shrug shoulders when we are wrong, convicting innocent people. The reflections on the death penalty written by Arthur Koestler and Albert Camus, with a strict reference to their countries, England and France, are meant to justify the 17th, 18th, 19th and 20th centuries. But because we still have the capital punishment in the 21st century, it is extremely important to understand what these great moralists have said and ask ourselves how truly necessary is the death penalty. “At about five o’clock, the prisoner was placed on an eight and a half foot square scaffold. He was tied with thick ropes, trapped in iron hoops, which fixated his arms and legs. One of his hands was burnt in a heating dish filled with burning sulfur; then he was skinned with large red, hot tongs on arms, legs, and chest. They shed molten resinous pitch and boiled oil on all wounds. These tortures, repeatedly, snatched terrible screams from him. Four strong horses, whipped by four aid executioners, pulled the ropes that were rubbing the bleeding and swelling wounds of the sufferer; pulling the ropes lasted for an hour. The limbs were elongated, but were not separated; thus, the executioners cut some muscles; and the limbs were separated one by one. Damiens, who had lost two legs and an arm, was still breathing and he gave his last breath only when all his parts got separated, from his bleeding torso to his last arm.”11 Reflections on the death penalty The book, given its scale, is divided into three sections. In addition to the written entries by Jean Bloch-Michel, the 1979 and 1957 editions contain annexed documents. The first section of the book captures the reflections on hanging by Arthur Koestler, the second presents the reflections on the guillotine by Albert Camus, and the third section, by Jean Bloch-Michel, reflects on the death penalty
9 The present article is a translation of the Romanian article ‘Recenzie: Reflecţii asupra pedepsei cu moartea de Arthur Koestler și Albert Camus, by Cecilia Popa, published in PROBATION junior, vol. IV, no. 1, 2012. [email protected] 11 The description of Robert-Francois Damiens’ execution from 1757 by Voltaire in Histoire du Parlement de Paris, (The history of the Paris Parliament) cap. 67. (p. 176) Damiens was the valet of the King Ludovic XVI of France, and on January 5th, 1757 he tried to assassinate the sovereign with a knife, but he only managed to hurt him. For the deed he was accused of regicide and his execution remains in the history of the death penalty as one of the most horrific executions.
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in France. The volume synthesizes the death penalty issue all over the world, using a chart with the world study on the death penalty, containing data provided by Amnesty International – an organization “engaged in a relentless struggle against the death penalty”. (p. 10)
The death penalty has always been subjected to allegations for moral, economic, political, and educational reasons.
In 1976 a “reversal” of the jurisprudence allowed the reintroduction of the death penalty in the American law in 38 out of the 50 States and in the Federal Government. Even today, in the United States executions take place in the presence of relatives of the victim, which prints a family revenge, inspired by the Biblical formula “eye for an eye and tooth for a tooth” (p. 8) or also known as the retaliation law. At the same time, in many American States today, most condemned to death are or were juveniles at the time of committing the crime.
Thanks to new techniques in criminal justice, in particular the identification of DNA, it has been reached to prove the innocence of a significant number of sentenced to death. Since 1973, over 90 offenders were found innocent thanks to the DNA identification, after they spent many years on the so-called “death row”. Pronouncing a death penalty makes a judicial error to be irreparable. Introductions to the editions from 1979 and 1957 by Jean Bloch-Michel France The death penalty has seen both ardent abolitionists and incurable supporters who expressed their beliefs through both political campaigns and legal actions. In the '80s, in France, actions drew attention to the death penalty’s abolition. In 1976 it was created a committee to study violence, crime, and delinquency under the supervision of the Minister of Justice at that time, Alain Peyrefitte. The Response to violence report was published, which proposed to abolish the death penalty in the recommendation 103. Surprisingly or not, the Minister of Justice concluded that France was not prepared for abolition: “I do not think this is the time for death penalty’s abolition” (p. 15) because “before proposing the death penalty’s abolition to the Parliament, French people must be prepared, not at all challenged”. (p. 16) Many of those who form the public opinion believed that the death penalty “protects them”. Jean Bloch-Michel mentioned that “the abolition of capital punishment will trigger, sooner or later, the abolition of life imprisonment sentence.” (p. 17) England The author argued that democratic regimes are hiding bits of authoritarian regimes or germs of the civil liberties’ destruction. Arthur Koestler, who was under the threat of a death sentence in 1937 for charges of espionage, started a campaign to abolish the death penalty throughout England in 1955. Also, during that year he published the volume Reflections on Hanging.
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There is at least one significant difference between the French law and the British law. In the case of homicide, in the English law there are no mitigating circumstances. If the French jury could formulate a sentence that could have went from prison with suspension to the death penalty, the England Assize Court did not have this possibility: “The defendant was either declared innocent and allowed to leave the court, being removed from prosecution, or he was found guilty and had no way to avoiding the death penalty.” (p. 21) There was however a third possibility, namely, the defendant was declared guilty but insane, being moved from the prison to the hospice. But because of the famous “M’Naghten norms” (which presented, almost unreachable, conditions under which an individual was considered insane) it was almost impossible for a person guilty of murder to be declared insane. Practically, they sought a simplification of justice. The jurors and the judges had to decide between total innocence and total guilt, meaning life or death. In his book, Arthur Koestler reacted especially against this simplification, which decided the fate of a highly complex human being through a simplistic barbaric justice. The 1957 Law regarding the homicides, approved by the House of Lords, brought a transformation in the criminal law, by emphasizing a more humane approach to sentences. In other words, in England the death penalty felt into disuse. At that time, in France the situation was different, as Jean Bloch-Michel indicated: “given the indifference of the public opinion and those in power, it might be said that it is a problem that interest no one; but the silence is especially theirs, of the authorities; it would be enough to torn someone in pieces for everyone to hear the ugly noise of executions.” (p. 23) “The death penalty still exists only because we cover our eyes and ears in order to know nothing about it.” (p. 23-24) Reflections on Hanging by Arthur Koestler “The death penalty is an issue that is not just about statistics or statistical average, but morality and feelings.” (p. 27) The legacy of the past The devil in the box Executioners were perceived as today’s movie stars. Their presence had “a sort of macabre kindness, such as an old family joke that only abolitionists and others humorless do not know to appreciate it”. (p. 30) Lord Chief Justice12 claimed, in the 1960s, that it was normal for the judge to have his head wrapped in black when pronouncing the death penalty because it was a sign of mourning. One of the executioners also claimed that maintaining the traditional aspects of the process was something sacred.
12 The Magistrate with the highest rank in England; a public function shared with the Lord Chancellor and for some other duties with the Minister of the Interior. (p. 30)
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Arthur Koestler claimed that British people had a greater degree of discipline and respect for the law, which is why the death penalty was a necessary evil in those times. But a series of investigations of the Parliamentary Commission and the Royal Commission in 1930 and 1948 showed that the irreplaceable faith in the death penalty in Britain was just a superstition. “Like any other superstition, it manifests as the devil in the box. Vainly the lid is kept being closed by the force of facts and statistics, the devil would jump out again pushing the box lid with the unconscious and irrational force of traditional beliefs.” (p. 34) “The Bloody Code”13 The most important British jurist of the nineteenth century, Sir James Stephen, argued that that law was “the clumsiest, careless, and cruel law that ever disgraced a civilized country”. (p. 35) “On the English territory, the hangings and places intended for them were so frequent, that in the first published guide for travelers these places were listed as landmarks.” (Ibidem) Moreover, almost for a century and a half, the days of executions were the equivalent of the national holidays, but were more common than those holidays. Some workers, such as those who were responsible for the delivery of goods, were not operating on a given day if during that day an execution took place.
“The events of public executions were more than national shame: they were outbursts of collective madness, whose distant echoes resound even today when at the prison gate an execution is advertised. [...] The scenes carried out with those occasions gained unexpected aspects of spiritual and violent agitation. People were fighting with each other. In 1807, 40,000 people came to witness the executions of Holloway and Haggerty. The crowd was filled with such frenzy that when the show ended, on that spot remained nearly 100 dead.” (p. 35-36) Public executions in eighteenth and nineteenth centuries were true public spectacles where all social classes attended. The ladies of the aristocracy queued to visit the offenders’ cells. A good place was booked at exorbitant prices; people came from the uttermost parts of the country to witness a “splendid hanging”. And all this happened in the sensitive period of Romanticism.
In many cases the executioners were drunk during the executions, and because of this they had to try two or three times to hang someone. “Sometimes, the victim was brought back to their senses by cutting a notch in the heel to let the blood shed, and then hanged again. In other cases, the executioner and his assistants had to cling on the victim’s legs to increase weight. [...] But there were also cases of victims who returned to their senses on the dissection table.” (p. 37)
Similar horrible scenes also took place after the executions were consumed, when mothers brought their sick children to the scaffold in order to heal them by the touch of those executed. Moreover, body parts of those killed were used in preparing medicines for different symptoms, such as toothache. 13 In the early nineteenth century, in England, the criminal law was known as the “Bloody Code”. The Code was unique in the world because it mandated the death penalty for around 220 – 230 offenses and crimes. (p. 34)
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The age of criminal liability in the 18th century was at the age of seven. For a child to be executed it had to be at least 14, but if someone would have proven “a clear evidence of propensity to evil” (p. 38), a child was liable to death by hanging. Chief Justice claimed that such execution had to take place because “the example given by such punishment will serve to stop other children from committing similar crimes”. (Ibidem) A particular case mentions of a situation of two children sentenced to death. One of them was illiterate and the other one was mentally retarded and “their education was reduced to what they had learned from gangster movies and cartoons that appeared in newspapers”. (p. 39) But, according to an official, the movies and the comics with gangsters were “essentially unrelated to the trial”. (Ibidem)
“An individual who did not turn 21 years old is not considered mature enough to sign a contract or a will, however, he is considered mature enough to be taken responsible for a crime and be executed for it.” (p. 40) Catherine the Great said that “people are guided by temperance, not by being excessively harsh” (p. 41), and her well known Instructions, intended to abolish the death penalty, revolutionized Russian criminal justice system.
The death penalty by hanging was considered a panacea against all crimes within the meaning of the Bloody Code. Thus, England, considered one of the oldest democracies in Europe, stood out not through the violent effects of foreign invasion but by its own legislative invasion in its own citizens’ lives. The causes of the “Bloody Code” There were three causes of the bloody code:
- The industrial revolution in England - The British disgust towards authority - The custom of English legal system – “the precedent”, which canceled any
“new idea” or new approach. If during medieval time, the death penalty was provided for offenses such as murder, treason, voluntary arson, and rape, reaching at the beginning of the eighteenth century for the death penalty to be administered for a total of 50 offenses, the Bloody Code, as noted previously, foresaw executions for approximately 230 offenses.
The industrial revolution meant that cities were growing fast, without administration and without security. The old order was disintegrating and social chaos erupted. “The sudden expansion of extreme poverty [...] coincided with unprecedented accumulation of wealth, which appeared as a challenge in addition to committing crimes. All foreign visitors agreed that they had never seen such wealth and splendor as in the homes and shops of London, and in the same time so many crooks, thieves, and robbers.” (p. 43) This revolution lasted a century and ended in 1829 when the modern police was created.
But the English were afraid of a police that could limit their freedom and, consequently, they chose the executioner, the familiar figure at the expense of the new and foreign one. Here is an argument of the defenders of the death penalty –
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“if the execution by hanging is abolished, the police will need to use arms to fight against criminals who will not be afraid anymore.” (p. 44)
An example of the third cause of the bloody code is given as follows: because of a gang of thieves from 1775 who robbed a number of owners in Hampshire and used to cover their faces to avoid being recognized, the Parliament enacted a law by which any person armed or disguised is guilty of a crime punishable by death penalty. The thieves gang disappeared quickly from Hampshire but the law remained in force for almost a century, until 1873. The purpose of this law expanded, allowing judges to apply it for a wide range of situations. And so, that precedent created the basis for other convictions. From this singular case, 350 more cases of criminals were sentenced to die. This situation showed the unlimited power a magistrate could have. “The oracles” “The English judiciary system is not based on a code, but on the application of the so called ‘Common Law’, which is the custom or the habit.” (p. 45) The Judges’ decisions were registered and received precedent value.
However, the English law did not accept torture as a mean to obtaining confessions, as did the Roman Law or the Canon Law. In England, to carve out was simply a more severe form of execution, not an investigation process. “While in other countries from the continent the procedure was inquisitorial, in England the procedure was accusatory.” (p. 46) But even if torture was not used, England was far from being compassionate. “The aversion toward written law left the English judiciary system at the hands of the ‘oracles’, the wig wearers who judged strictly on the basis of the precedent. The law was not only applied by them but also made by them.” (Ibidem) Any legislative attempt brought by their opponents or by third parties, who repealed the death penalty, at least for some crimes, was categorically rejected because as Lord Chief said “we do not want to witness the change of laws in England”. (p. 47) Lord Chief also added that the death penalty law was voted “in the most glorious period of our history and there is no reason to risk it by exposing it to some experiments”. (Ibidem) So, hanging publicly a seven-year-old child was not reason enough. The public revolt Between 1808 and 1837 a decisive fight was worn in order to repeal the Bloody Code. The reformist movement had always faced the argument that “only the death penalty has an exemplary meaning”. (p. 48) In 1811 the petitions in this regard triggered a surprising evolution of the death penalty issue. On behalf of the public, reformists required changes in sentences. In 1819 there were already over 12,000 petitions coming from different entities such as the guildsmen in London, bankers, juries etc. Therefore, the Parliament created the “Select Committee”, which prepared a report that included for the first time “a statistic of crime and punishment in England and the amendments to the
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provisions of criminal law for the past three centuries”. (p. 49) The report incorporated the view of various social actors such as the merchants, guards, priests, but not the judges. And soon the public opinion stopped challenging the bloody code. “Hanging is not enough” Another famous English jurist, this time from the seventeenth century, remained associated with the “Piously Butchery” by wheel and rope supporting it with biblical quotes. The heart and the entrails of a man needed to be torn from the living body of the hanged one. Any argument for removing cruelty during the executions was fined with the idea of destroying the Constitution’s foundation. Another form of execution dating since 1296, such as burning someone alive, did not include the barbarian torture, and so it was considered meaningless of an “exemplary value”. And it was repealed in 1816. In 1948 corporal punishment was abolished because, according to the Atkins inquiry Committee on corporal punishment, “we do not have the assurance that corporal punishment has a tremendous effect in terms of its exemplary, as claimed by those in favor of its application.” (p. 55) However, one form of corporal punishment still remained in use, such as whipping, “administered by a chief guardian who knows the job” because “by applying a humiliating punishment, the offender would be deprived of all hopes for reformation.” (Ibidem) The judges and the rights of the accused “Only by 1836, those who were accused by a crime, punishable by death penalty, were allowed to be defended by a lawyer.” (p. 56) Until then, it was considered that the lawyer presence “would undermine the confidence that he [the offender] can have in the absolute impartiality of the judge” (Ibidem), moreover, the presence of a counsel was quite unnecessary as long as the judge was seen as “the best friend of the accused”. (Ibidem)
For 70 years the judges opposed categorically the creation of a Court of Criminal Appeal. Only in 1907 this institution was created. Before that, there was no institution to which a death sentenced could have made an appeal. The only hope an offender had, in this situation, was to receive royal clemency. The doctrine of maximum roughness “When the social progress started to surpass the law, and the harshness of punishments appeared to public opinion as disproportionate, the jurors began to falter before providing a verdict.” (p. 58) Cesare Beccaria, head of the judiciary reform in the Age of Enlightenment in Europe, argued that the purpose of punishment is to protect society, and when this punishment does not serve its purpose, the legal barbarism becomes no more than common barbarism: “the same ferocious spirit that drives the hand of the legislator, also leads the hand of parricides or assassins”. (p. 59)
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Koestler argued that the “harshness breeds impunity” and thus the moderate punishments are more effective in preventing crime than the excessive ones, because they “are applied without delay and without hesitation”. (Ibidem) Moreover, people are scared to give excessive punishments to their peers amid inhuman laws. He also accused the monopoly of judges in England, nowhere else present, comparing them with the alchemists in the Middle Ages who “lived hidden in a mysterious universe composed of secret formulas, with their spirit back to the past, refractory to external changes, wanting to know nothing but their inaccessible world.” (p. 60) Social changes always lead to one of these two alternatives: harsher laws or milder laws. And England chose a bloody Code. Judges became “victims of their own professional deformation” (p. 61) because they knew too little about human nature and about the killer’s profile, so their behaviors became inhuman.
“From a psychiatric point of view, the horrors of the Bloody Code such as hanging children and the orgies that took place during the public executions were nothing more but symptoms of a disease known as hysterical anxiety.” (Ibidem) Thieves and cops This “fourth power” of magistrates had a considerable support from the representatives of the Church. Those who opposed the abolition of the death penalty were the first ones in line to suffer if laws were to be tamed, because they believed that if laws would change, their already poorly paid work would become more difficult. They believed in death penalty because of its power of example and repression, and of its easiness in implementation.
During a survey held in 1856, concluded with the purpose of determining whether executions should be public or not, a retired police inspector argued that “I do not think there is a way that could equally execute in secret and satisfy the public”. (p. 64)
The Committee recommended that executions should not be public, but these executions continued to be performed publically for another 12 years. The Committee's decision based on that survey considered that, statistically speaking, the assumption according to which the abolition of death penalty would lead to an increase in armed criminals was not valid. The number of crimes committed with illegal weapons was not correlated with the number of executions. In Belgium, where the death penalty was abolished at the time, armed criminals were fewer than in France where capital punishment was in force.
Interesting is also the fact that one’s decision to be part of one side or the other of this discussion was related to someone’s position. “Before he became Interior Minister, Sir Samuel Hoare fought for abolition; as soon as he took receipt of the portfolio he opposed it. Soon after he had ended the portfolio he returned to being an opponent of the death penalty, addressing the subject in a very moving book.” (p. 69) Therefore, a public position was reason enough to have a stricter attitude and be more refractory to external influences.
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Reflections on hanging a pig or what is criminal responsibility “In the Middle Ages, and, for some isolated cases, even in the nineteenth century, the animals guilty of killing a human being were judged as humans were, according to the law. They were defended by a lawyer, sometimes paid, and in most cases they were sentenced to be hanged, burned or buried alive.” (p. 70) As outrageous as it was, the picture of an animal killed for allegedly breaking the law was very common. But, intellectually speaking, why are we “more outraged by the execution of an animal than of a human being?” (p. 71) As long as the mental deficiency and the lack of moral sense were not sufficient to annul the criminal responsibility and the possibility to plead “guilty but insane”, arguments such as “your dog knew the nature of his action and knew it hurt while performing it” were very common. (p. 72) Moreover, the law had “such definition of dementia that no one was really insane enough to be able to fit in it.” (p. 73) Thus, a mentally ill person who was brought before the court could have been admitted to a psychiatric institution or placed under surveillance, but only if he or she did no commit a crime punishable by death penalty. The precedent without the precedent or the “M'Naghten norms” “Dementia, as a defense, is an exception in the processes related to offenses other than murder, while in the case of murder it becomes almost a rule.” This is because “murder is closer to dementia than any other crime”. (p. 77) M'Naghten was an insane man, a protestant from Northern Ireland who believed that the Pope, the Jesuits Order, and the Conservative Party leader wanted to kill him. Reason why he bought a gun and went to kill the Conservative Party leader. He did not shoot him, instead he shot his secretary. Eight doctors were heard at his trial and all eight of them said that “given his fixed idea, M'Naghten had no control over his actions”. (p. 79) Based on this decision, M'Naghten was sent to the hospice, but because many discussions surrounded this event, the “oracles” claimed that such insane man as M'Naghten needed to be hanged in order to prevent other insane people from doing similar acts. Therefore, the House of Lords drew up a questionnaire on criminal liability of those with mental disabilities. The questionnaire was sent to 15 judges who presided over the courts of the kingdom. No medical staff was approached in this regard. The judges' decision was contradictory to the decision of the doctors, and they suggested that the man should be hanged. That judges’ decision became known as “M'Naghten norms” and it was used as precedent for 113 years.
M'Naghten norms were created when the word psychiatry did not exist and there was no such thing for a man to have “a biological past, animalistic instincts, and impulses that [...] are still part of his natural heritage and, at the same time, a partial explanation and justification of his actions; in addition, no one imagined that education, the childhood experience, and the social environment are largely
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responsible for the formation of the character, including the character of criminals”. (p. 81-82)
Yet, all depended on the judge’s humanity or its lack – “the judge should refer strictly to the law, then ‘expand’ the meaning of words used by the law to the point where the individual who does not have the exercise of the judiciary language gets confused by the judge who distorts and deforms the poor words until one gets to wonder if disputing the language is even necessary; and which language distortion’s obvious benefit is that it can mean whatever the judge wants to mean”. (p. 85) And opposing “a judge’s words, sometimes a man’s life was put at stake”. (p. 86) Koestler argued that the judges were the obstacles in reforming these norms. They did not even consider the experience of other countries, because “the foreigners are different”. (p. 87) Koestler also claimed that “the best advocate for the abolition of the death penalty is the argument used by proponents themselves and their mentality.” (p. 90) The free will and the determinism or the philosophy of hanging A cause can generate one or more effects. The genetics and the social environment generate the human behavior. And even if the individual has the free will, his decisions are a result of his past.
“From a scientific point of view, a man's actions are strictly determined by genes that have been transmitted through his heritage, by the endocrine glands or his liver, by education, and by past experiences which shape his habits, thoughts, beliefs, and philosophy, similar to the functioning of a watch that is determined by its springs, by its wheels, and the connections between them.” (p. 93) Education is the foundation for a set of behaviors and reactions of an individual able to act according to social norms. But if the free will is a pure illusion, a paradox is created – “’The criminal responsibility’ would be an absurdity, because the word ‘responsibility’ implies the possibility of free election during an action, while free will is an illusion and all our actions are pre-determined. ‘I could not help myself’ would be enough to say in defense of anyone, because none of us can help being what we are.” (p. 94)
But we must agree that it is “’up to us’, at least to some extent, to choose our activity for the next five minutes”, because “our whole experience with reality, any impetus and incentive to exercise our will rests on the decisions that occur from one moment to another, certainly not on the experience solely based on the conduct of a monotone chain in which each link was connected in ancient times”. (p. 95) Especially because the “man cannot live without the illusion that he is the master of his own destiny”. (p. 97) But science shows that the man, when it comes to choosing how he acts, “is free like a robot” in doing so. (Ibidem)
But whether we speak of free will or determinism, we need laws because “if the behavior of radioactive atoms would depend on no law, the world would not form the universe, but chaos’. (p. 99)
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In fact, “the dilemma of freedom-predestination is the essence of the human condition”. (p. 103) Lord Goddard and the Sermon on the Mountain or the result to a philosophy of hanging “Every sentence has three goals: to punish, to protect, and to rehabilitate.” (p. 105)
The death penalty involves revenge, but in this case is not only the criminal who needs to be punished, but also “the alcoholic father, the mother who raise him like that [...] the teachers, employers, and the entire society” who were accomplices of the murderer, who assisted him or incited him to act the way he acted. (p. 106) The religious and metaphysical systems had to explain the presence of evil and answer “why did God give man freedom to choose evil?” (p. 107) The humanization of the criminal justice system through the courts for children, parole or through the presence of open prisons was due to the understanding of the social origins of a crime. Unfortunately, a death penalty makes impossible any reparation. If for any offense, other than murder, the judge had a wide range of sentences from which to choose, for murder he could decide in two ways only: innocent or sentenced to death. But the “greatest defect of the law on murder is that it provides a unique punishment for an offense for which defining liability can be extremely difficult”. (p. 112)
Law makers believed that abolishing the death penalty would also deny an offender’s criminal responsibility and it would force the use of notions such as “uncontrollably impulse” and “diminished liability”, which would lead to more controversy.
“Being impossible to predict when a man acted freely, and must die, and when under compulsion, which means that he has the right to live, the only solution is to bring the law regarding the death penalty at the same level with the other laws, by removing the sentence that addresses the death penalty […], which only gives the possibility of all or nothing.” (p. 113) Unfortunately, “jurors cannot reduce the length of the rope, as you cannot strangle or break the neck with suspension”. (p. 115) Reflections on the guillotine by Albert Camus “When the supreme justice causes only vomiting to the honest man, whom it supposes to defend, it is hard to argue that having this sentence brings peace and order in the city. On the contrary, it appears clearly that it is no less outrageous than the murder itself, and the new assassination, not only that it does not stop insulting the society, but it does defile it again.” (p. 119-120)
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A social problem becomes a serious illness because no one dares to talk about it openly – the death penalty is “a necessary evil that legitimizes murder because it is necessary, but of which no one speaks about because it is wrong”. (p. 120) And “when imagination sleeps, words are emptied of meaning: deaf people take note about the conviction of a man without paying him attention; but if the machine is showed to them, if they touch the machine’s wood and iron, if they hear the noise of the falling head, the public imagination, suddenly awakened from sleep, will repudiate both this type of expression and the death penalty”. (p. 121) Albert Camus did not believe that man is a social animal, but was convinced that man cannot live outside society, so establishing a punishment was due to the society’s responsibility, but on a rational and efficient scale. Like Arthur Koestler, Albert Camus also believed that capital punishment does nothing more than “dirtying the society”, more so as its supporters could not justify it rationally. The last public execution in France took place in 1939, when authorities pointed that advertising a public execution in the press did nothing more but “delight the sadistic instincts among readers”. (p. 124) The executions were moved behind closed doors. “What kind of power of example can have the stealthily killing at night in the courtyard of a prison?”, Camus asked himself. (Ibidem) During the National Assembly in 1791, a representative of the people argued that “for controlling people it takes a frightening spectacle”. (Ibidem) Moreover, proponents of the death penalty had as a singular argument for this punishment, the “power of example”. But how could it give an example if it did take place behind closed doors? And what crime is more heinous than the murder committed for public delight, which remains imperfect for the show? “The blood leaves the vessels in the severed carotid. Muscles contract, their fibrillation is intoxicating; the intestines curl and the heart beating is irregular, incomplete, fascinating; the mouth grips at moments in a terrifying grimace; it is true that on this decapitated head, with immobile eyes, with dilated pupils they don’t watch, fortunately, but they are not troubled either, they have no cadaver opalescence and they do not move; their transparency is alive, but their fixation is of death; all these can take minutes, even hours to individuals without disabilities: death is not immediate...” (p. 126) “It is said that Charlotte Cordaz's face blushed by the palm of the executioner after beheading.” (Ibidem) The sociologist Tarde argued that “it is better to kill without torture than to torture without killing”. (p. 129) By masking these executions, the state confirms that it “does not really believe in their power of example” (p. 128), and that these executions are taking place due to tradition and routine. “A law is applied mot-à-mot, and our inmates die imitatively based on a theory in which executioners do not believe.” (p. 129) Furthermore, moving these executions behind closed doors could have triggered the delay of abolishing the death penalty – “If you remove the atrocity of this show, if you perform executions inside prisons, you will quell the excessive public outrage from recent years and you will strengthen the death penalty”,
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because now it has no reason to be carried out and becomes more hideous; “either you kill publicly or admit that you do not feel authorized to kill.” (Ibidem)
Camus also asked to consider a paradox about the death penalty, which is that the society is at least naive to believe in the power of example of such punishment, as long as it does not stop the actual crimes. The law will always be less complex than the nature itself. The power of example that the capital punishment proclaimed (and still proclaims) was statistically unfounded. Koestler wrote that in England “while pickpockets were executed, others thieves showed their mastery in the crowd surrounding the scaffold on which their fellow criminals were hanged”; “out of 250 criminals who were hanged, 170 previously witnessed one or two executions”; “in 1886, out of 167 sentenced to death who were initially imprisoned in Bristol penitentiary, 164 witnessed at least one execution before.” (p. 131)
Any form of passion, such as love, honor or revenge defeats pain, and so, death. If we want “that capital punishment to be a truly scarecrow, human nature should be different, more exactly, to be as stable and calm as the law itself”. (p. 132) Any criminal will declare his innocence before a trial and will be afraid of death only after trial. Camus said that for the law to scare, it should not allow any mitigating circumstance. The survival instinct is essential as is the death instinct. Therefore, the desire to kill sometimes coincides with the desire to die – “the preservation instinct is replaced, in various proportions, by the instinct of destruction”. “In a sense, you kill in order to die.” (p. 133) The statistics for this issue during the 20th century showed that there was no correlation between the death penalty and crime, the only connection was the law. Basically, “the offender is cut in half not so much for the crime he committed, but for all the crimes that could have been committed and were not, and that may be committed and will not.” (p. 135)
“If it is important to frequently demonstrate to the people the power a death penalty has, than the executions must be frequent; but that means that crimes must be frequent as well, which will only prove that the death penalty does not impress to the extent that it should do, hence it is both useless and necessary.” (Ibidem) And if it useless but necessary, then the state hides it. Therefore, the death penalty is a law that knows the crime that it triggers, in order to turn on the machinery of death, and ignore the one that prevents it. Like Koestler, Camus also concluded that the death penalty is a form of revenge because “sanctioning without preventing is called, indeed, revenge”. (p. 138) Even if we agree that the murder of a victim is compensated through the death of his or her offender, the difference between death penalty and homicide is similar to the difference between a prison and a concentration camp. Moreover, the capital punishment is a premeditated death, and a premeditated murder is considered more serious than a violent, but unpremeditated, crime.
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The individual sentenced to death is basically tortured, oscillating between hope and animal despair, because “degrading and devastating fear, which is a subject that the convicted man deals with for months or even years while waiting for the execution, is a more frightening punishment than the death itself, which the victim was not subjected to”. (p. 140) “There is not a big deal to know when you are going to die, a sentenced to death from Fresnes said. Maddening and frightening is not knowing if you’ll live”. (p. 141) The consciousness remains in a state of inert material, a consciousness that becomes a man’s main enemy. “I have no courage even for that” (p. 143) witnessed a young offender who was asked to write his family, a few moments before execution. If waiting for the execution is a destruction of self, we could talk about two deaths, the first being by far the worst. And this fundamental injustice hurts also the offender’s relatives.
Camus described how a great surgeon confessed that “he did not inform his patients, not even the faithful ones, when they had an incurable cancer. He considered that the shock could kill their faith”. (p. 144) “After all, when criminals kill they assume the risk of the most dreadful of deaths, but those who kill these criminals risk nothing, outside of a promotion.” (p. 143) Referring again to the law of retaliation, the crime is committed by an individual totally guilty against a totally innocent person, the victim. But the society, which assumes that it represents the victim, is not at all innocent. It is responsible for the crime that represses. And so, “every society has the criminals it deserves”. (p. 145-146)
Camus believed that overcrowded houses and inns were already serious nurseries of crime. So, the French society already had the outbreaks of crime. The author also mentioned that during the ‘50s, 60% of the violent crimes were caused by alcohol consumption. “A survey conducted in 1951 in the Fresnes prison yard, among common law prisoners, showed that 29% of them were chronic alcoholics and 24% came from alcoholic families.” (p. 146-147)
According to Camus, the early 1880s were marked by an increase in crime due to the legalization of opened kiosks without prior authorization for selling alcohol. “The state that does sow alcohol should not be surprised that collects crime.” (p. 147)
If we agree that an alcoholic who commits a crime does not have full responsibility, then the sentence should not be absolute.
Every society has its own brutes. But the problems they create cannot be solved by the death penalty. Surely, this punishment could cut the problem from its roots, but the capital punishment applies not only to these brutes and thus, Camus asked – “Can we be sure that none of those executed is recoverable? Can we swear that none of them is innocent? (p. 149) “In 1860, the jurist Olivecroix used the statistical probability to calculate the judicial error. The conclusion was that one in 257 cases is innocent and condemned to death penalty.” (p. 150)
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“Guilt is not established with great rigor in a test tube. A second tube will show the opposite, and the personal equation will preserve its importance in this deadly math.” And “today as yesterday it persists the risk of error”. (p. 152) Camus argued that the processes held at the Court of Assize are influenced by unpredictability: defendant's history, his attitude, his diction, incidents’ evaluation during the hearing, etc. And all these influenced the final decision of the jury. In 1832, the justice reform in France allocated jurors the possibility to grant undetermined extenuating circumstances, therefore it mattered the way the jury assessed these circumstances. “Death penalty cases are no longer accurately provided by the law, but by the jury, which [...] makes an assessment based on the trial.” (p. 153)
The Greeks believed that a crime let unpunished would contaminate the fortress. Camus argued that convicting and harshly punishing an innocent man would also contaminate a society in an equal manner. The author mentioned that in the French law the death penalty was classified based on different crimes, but he also argued that the justice ruled by humans is not at all as classified as this particular penalty. Why? “Because it does know it can be untrue”. Camus asked why justice, in these circumstances, does not show modesty and does not leave “enough space for maneuvers around sentences, so a possible mistake could be repaired?” (p. 154) he continued saying that “there are no righteous people, only hearts more or less unjust”, and “without absolute innocence there is no supreme justice”. (p. 157) Camus also considered that the supreme penalty was in fact a religious sanction, and this religious spectrum allowed corrections in the afterlife. But the capital punishment as a social construct cannot do that.
Furthermore, the emperor Julian used to avoid giving administrative tasks to Christians because their belief did not agree with killing other people, and so were reluctant to administer a death sentence. But later on, Christians came to accept the death penalty, justifying it through the rehabilitation that happens because of the immortality of the soul. As mentioned previously, in social terms the death penalty does nothing but eliminate a temporary problem, while it permanently crushes the human belief in life by giving “death absolute power”. (p. 161)
“Proclaiming that an individual must categorically be removed from society, because he is absolutely wrong, is similar in saying that a society is absolutely good” (p. 162), which is literally false. Moreover, “the blood, like alcohol, will eventually get addictive, like the friendly wine”, and “bloody laws draw bloody manners”. (p. 163) Albert Camus’ reflections are concluded with his belief that societies will not know peace until they will take death out of their laws. “Don’t kill Cain, let live in him a sign of reprobation, also seen by the people’s eyes, this is the lesson we must learn from the Old Testament.” (p. 167)
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The death penalty in France by Jean Bloch-Michel Jean Bloch-Michel mentioned that throughout the history many thinkers admitted that individual's life is only a conditional gift received from the state (Rousseau), or that the death penalty was considered to be part of the nature of things, absolved by the good and wrong (Montesque), or that the society has the right to take the life of an individual as long as this life is the most important asset of the social order (Diderot). In the years following the French Revolution, the Criminal Code reduced the number of offenses punishable by death to 32, according to the ordinance 115 from 1670. The death penalty continued to be implemented in four procedures: by decapitation, by hanging, by breaking on the wheel, and by burning.
Just as Camus stated, the executions by hanging were filled with horrifying events – “the executioner, keeping his hands on the arm of the gallows, gets on the tied hands of the convicted and kicks the convicted stomach with his knees [...] while the offender spins around four times”. (p. 177) Usually, the body remained hanged for display for one day, before being thrown away to the landfill. For certain types of offenses, such as murder and premeditated murder, grand theft, burglary, rape of young girls, the torment of breaking someone on the wheel was composed of two parts. First, the offender, naked under his shirt, was laid on a cross, sited on the scaffold, with his head placed on a stone and his limbs bounded with ropes. The executioner, then, hit him with a rod of iron about 11 times. Second, the body was fixated on the wheel until the heels touched the neck, and this display was exposed to the public.
In cases of parricide (the act of murdering one’s parents), uxoricide (the act of murdering one’s wife) and the murder of priests, after the offenders were broken on the wheel, they were also burned either alive or dead. Combining forms of executions was very common. Another combination of executions was burning and hanging, when the offender was hanged first and then burnt. The practice of such combinations did not want to “aggravate the first procedure, but rather to reinforce the second one”. (p. 179) Throwing corpses to the landfills or abandoning them along the road, and not burying them according to the Christian faith, was a form of destroying the afterlife of those executed. “It was about total exclusion, not only from the human society.” (p. 180) On October 9, 1789, Dr. Guillotin brought to the attention of the National Assembly “the decree regarding the provisional reforming of the criminal procedure” (Ibidem) to which he added six new articles:
- The first article specified that all of those who commit the same type of crime to be punished in the same way, regardless of their social status;
- The second article suggested that the same procedure should be used during the execution, regardless of the offense;
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- The third article mentioned that the family of the offender should not be stigmatized as long as the criminal acted alone;
- The fourth article specified that those who blame the relatives of those who committed crimes are to be punished;
- The fifth article stated that the offender’s property should not be confiscated;
- And the sixth article indicated that the families could bury the bodies of those executed without having to detail in the city’s register the way they died.
On January 21, 1790, this decree was voted, not before Dr. Guillotin proposed for the first time the guillotine as a tool for execution, a machine yet to be invented at the time. The draft of the Criminal Code, including these changes, was brought to debate on May 30, 1791. On June 1, 1791, the Assembly decided to maintain the death penalty by beheading, although this decision was not free from controversies, such as the fact that this type of execution could easily transform into torture if not executed properly. This death penalty was adopted along with punishments such as forced labor, detention in a maximum-security prison, simple detention, pillory, civil degradation, wrist amputation, deportation, and red iron marking.
In the early 1792 an executioner from Paris sent a memorandum to the Minister of Justice in which he stated that “for an execution to happen according to the law and lack any horrible events, it would require a highly skilled executioner and an offender who complies with the procedure”. (p. 186)
On March 20, 1792, the Assembly adopted the use of guillotine to execute offenders, and on April 25, 1792, it took place the first public execution by guillotine. These public executions ceased in 1939. In 1810 the Napoleon Criminal Code reintroduced the usage of torture during imprisonment, but reduced the number of crimes punishable by death, from 32 to 27. By 1832 the punishments such as wrist amputation, red iron marking, and exposure at the pillory were taken out of the law. For a short period of time in 1866, prisoners were forced to wear a straitjacket. But it was soon forbidden, after a former detainee wrote his memoirs and mentioned about this method of torture.
If in 1793 the law stipulated the presence of one executioner in every department of the French judiciary system, by 1832 the number of executioners was reduced drastically. A decision from March 9, 1849 “stated the presence of only one chief executioner in every Court of Appeal and one deputy executioner in every department of the Court”. (p. 193) And by 1870, the decree from November 25 reduced the existence of executioners to just one chief executioner and five deputy executioners throughout France. The Napoleon’s Code referred to 27 offences punishable by death, but the revision of the code, which took place in 1832, reduced these offences to 16. By 1848, when the Article 5 of the Constitution was amended, the death penalty for
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civilians was abolished in France. Only in the military justice code the death penalty was still applicable for those convicted of desertion.
The second world war brought the death penalty through a decree from July 29, 1939, referring that it should be applied “for civilian or military attempts against the state security, in both peace and war times”. (p. 195) This decree led to the adoption of other laws providing the death penalty for other crimes. And “the period before Liberation and the one that followed it were marked by a sharp and pronounced increase in the death penalty”. (p. 197)
Immediately after the war, “the exceptional tribunals, the courts, and the high court became operational and issued numerous condemnations”. Over 2,640 death sentences were pronounced, out of which 768 resulted in executions. This situation also led to an increased application of the death penalty for crimes in the common law.
Jean Bloch-Michel pointed out that the number of offenses should not only be correlated with the increase in the population number or with that of alcoholism, but also with the increased number of suicides in France. If in 1830 the number of suicides was 2,084, it reached to about 10,000 in the early twentieth century.
Based on these reflections, we can conclude that abolishing the death penalty is a matter of political, economic, and social developments, without which a nation is not eager to deal with, voluntarily. Just as torture was seen as the maximum limit on the punishment scale, but it got lowered to the death penalty without torture. Likewise, the scale will be lowered again to the life imprisonment with hard labor. “Those who make this proposal know that in few years, against life imprisonment will be vigorous protests like it happens today against death penalty, and they will require a lowering of the maximum limit, once again.” (p. 201) Although these reflections are correlated to the 17th, 18th, 19th, and the 20th centuries, they are the legacy on which we still execute in the twenty-first century.
