In Favor of Capital Punishment
Jacques Barzun
1 A passing remark of mine in the Mid-Century magazine has brought me a number of letters and a sheaf of pamphlets against capital punishment. The letters, sad and reproachful, offer me the choice of pleading ignorance or being proved insensitive. I am asked whether I know that there exists a worldwide movement for the abolition of capital punishment which has everywhere enlisted able men of every profession, including the law. I am told that the death penalty is not only inhuman but also unscientific, for rapists and murderers are really sick people who should be cured, not killed. I am invited to use my imagination and acknowledge the unbearable horror of every form of execution.
2 I am indeed aware that the movement for abolition is widespread and articulate, especially in England. It is headed there by my old friend and publisher, Mr. Victor Gollancz, and it numbers such well-known writers as Arthur Koestler, C.H.Rolph, James Avery Joyce and Sir John Barry. Abroad as at home the profession of psychiatry tends to support the cure principle, and many liberal newspapers, such as the Observer, are committed to abolition. In the United States there are at least twenty-five state leagues working to the same end, plus a national league and several church councils, notably the Quaker and the Episcopal.
3 The assemblage of so much talent and enlightened goodwill behind a single proposal must give pause to anyone who supports the other side, and in the attempt to make clear my views, which are now close to unpopular, I start out by granting that my conclusion is arguable; that is, I am still open to conviction, provided some fallacies and frivolities in the abolitionist argument are first disposed of and the difficulties not ignored but overcome. I should be glad to see this happen, not only because there is pleasure in the spectacle of an airtight case, but also because I am not more sanguinary than my neighbor and I should welcome the discovery of safeguards – for society and the criminal – other than killing. But I say it again, these safeguards must really meet, not evade or postpone, the difficulties I am about to describe. Let me add before I begin that I shall probably not answer any more letters on this arousing subject. If this printed exposition does not do justice to my cause, it is not likely that I can do better in the hurry of private correspondence.
4 I readily concede at the outset that present ways of dealing out capital punishment are as revolting as Mr. Koestler says in his harrowingvolume, Hanged by the Neck. Like many of our prisons, our modes of execution should change. But this objection to barbarity does not mean that capital punishment – or rather, judicial homicide – should not go on. The illicit jump we find here, on the threshold of the inquiry, is characteristic of the abolitionist and must be disallowed at every point. Let us bear in mind the possibility of devising a painless, sudden and dignified death and see whether its administration is justifiable.
5 The four main arguments advanced against the death penalty are: 1) Punishment for crime is a primitive idea rooted in revenge; 2) capital punishment does not deter; 3) judicial error being possible, taking life is an appalling risk; 4) a civilized state, to deserve its name, must uphold, not violate, the sanctity of human life.
6 I entirely agree with the first pair of propositions, which is why, a moment ago, I replaced the term capital punishment with “judicial homicide.” The uncontrollable brute whom I want put out of the way is not to be punished for his misdeeds, nor used as an example or a warning; he is to be killed for the protection of others, like the wolf that escaped not long ago in a Connecticut suburb. No anger, vindictiveness or moral conceit need preside over the removal of such dangers. But a man’s inability to control his violent impulses or to imagine the fatal consequences of his acts should be a presumptive reason for his elimination from society. This generally covers drunken driving and teen-age racing on public highways, as well as incurable obsessive violence; it might be extended (as I shall suggest later) to other acts that destroy, precisely, the moral basis of civilization.
7 But why kill? I am ready to believe the statistics tending to show that the prospect of his own death does not stop the murderer. For one thing he is often a blind egotist , who cannot conceive the possibility of his own death. For another, detection would have to be infallible to deter the more imaginative who, although afraid, think they can escape discovery. Lastly, as Shaw long ago pointed out, hanging the wrong man will deter as effectively as hanging the right one. So, once again, why kill: If I agree that moral progress means an increasing respect for human life, how can I oppose abolition?
8 I do so because on this subject of human life, which is to me the heart of the controversy, I find the abolitionist inconsistent, narrow or blind. The propaganda for abolition speaks in hushed tones of the sanctity of human life, as if the mere statement of it as an absolute should silence all opponents who have any moral sense. But most of the abolitionists belong to nations that spend half their annual income on weapons of war and that honor research to perfect means of killing. These good people vote without a qualm for the political parties that quite sensibly arm their country to the teeth. The west today does not seem to be the time or place to invoke the absolute sanctity of human life. As for the clergymen in the movement, we may be sure from the experience of two previous world wars that they will bless our arms and pray for victory when called upon, the sixth commandment notwithstanding.
9 “Oh, but we mean the sanctity of life within the nation!” Very well: is the movement then campaigning also against the principle of self-defense? Absolute sanctity means letting the cutthroat have his sweet will of you, even if you have a poker handy to bash him with, for you might kill. And again, do we hear any protest against the police firing at criminals on the street – mere bank robbers usually – and doing this, often enough, with an excited marksmanship that misses the artist and hits the bystander? The absolute sanctity of human life is, for the abolitionist, a slogan rather than a considered proposition.
10 Yet it deserves examination, for upon our acceptance or rejection of it depend such other highly civilized possibilities as euthanasia and seemly suicide. The inquiring mind also wants to know, why the sanctity of human life alone? My tastes do not run to household pets, but I find something less than admirable in the uses to which we put animals – in zoos, laboratories and space machines – without the excuse of the ancient law, “ Eat or be eaten.”
11 It should moreover be borne in mind that this argument about sanctity applies – or would apply – to about ten persons a year in Great Britain and to between fifty and seventy-five in the United States. These are the average numbers of those executed in recent years. The count by itself should not, of course, affect our judgment of the principle: one life spared or forfeited is as important, morally, as a hundred thousand, But it should inspire a comparative judgment: there are hundreds and indeed thousands whom, in our concern with the horrors of execution, we forget: on the one hand, the victims of violence; on the other, the prisoners in our jails.
12 The victims are easy to forget. Social science tends steadily to mark a preference for the troubled, the abnormal, the problem case. Whether it is poverty, mental disorder, delinquency or crime, the “ patient material” monopolizes the interest of increasing groups of people among the most generous and learned. Psychiatry and moral liberalism go together; the application of law as we have known it is thus coming to be regarded as an historic prelude to social work, which may replace it entirely. Modern literature makes the most of this same outlook, caring only for the disturbed spirit, scorning as bourgeois those who pay their way and do not stab their friends. All the while the determinism of natural science reinforces the assumption that society causes its own evils. A French jurist, for example, says that in order to understand crime we must first brush aside all ideas of Responsibility. He means the criminal’s and takes for granted that of society. The murderer kills because reared in a broken home or, conversely, because at an early age he witnessed his parents making love. Out of such cases, which make pathetic reading in the literature of modern criminology, is born the abolitionist’s state of mind: we dare not kill those we are beginning to understand so well.
13 If, moreover, we turn to the accounts of the crimes committed by these unfortunates, who are the victims? Only dull ordinary people going about their business. We are sorry, of course, but they do not interest science on its march. Balancing, for example, the sixty to seventy criminals executed annually in the United States, there were the seventy to eighty housewives whom George Cvek robbed, raped and usually killed during the months of a career devoted to proving his virility. “it is too bad.” Cvek alone seems instructive, even though one of the law officers who helped track him down quietly remarks: “As to the extent that his villainies disturbed family relationships, or how many women are still haunted to another living soul, these questions can only lend themselves to sterile conjecture.”
14 The remote results are beyond our ken, but it is not idle to speculate about those whose death by violence fills the daily two inches at the back of respectable newspapers – the old man sunning himself on a park bench and beaten to death by four hoodlums , the small children abused and strangled , the family terrorized by a released or escaped lunatic, the half- dozen working people massacredby the sudden maniac , the boatload of persons dispatched (v.) by the skipper, the mindless assaults upon schoolteachers and shopkeepers by the increasing horde of dedicated killers in our great cities. Where does the sanctity of life begin?
15 It is all very well to say that many of these killers are themselves “children,” that is, minors. Doubtless a nine-year-old mind is housed in that 150 pounds of unguided muscle. Grant, for argument’s sake, that the misdeed is “the fault of society,” trot out the broken home and the slum environment. The question then is, what shall we do, not in the Utopian city of tomorrow, but here and now? The “scientific” means of cure are more than uncertain. The apparatus of detention only increases the killer’s antisocial animus . Reformatories and mental hospitals are full and have an understandable bias toward discharging their inmates. Some of these are indeed “cured” – so long as they stay under a rule. The stress of the social free-for-all throws them back on their violent modes of self-expression. At that point I agree that society has failed – twice: it has twice failed the victims, whatever may be its guilt toward the killer.
16 As in all great questions, the moralist must choose, and choosing has a price. I happen to think that is a person of adult body has not been endowed with adequate controls against irrationally taking the life of another, that person must be judicially, painlessly, regretfully killed before that mindless body’s horrible automation repeats.
17 I say “irrationally” taking life, because it is often possible to feel great sympathy with a murderer. Certain crimes passionnels can be forgiven without being condoned. Blackmailers invite direct retribution. Long provocation can be an excuse, as in that engaging case of some years ago, in which a respectable carpenter of seventy found he could no longer stand the incessant nagging of his wife. While she excoriatedhim from her throne in the kitchen- a daily exercise for fifty years— the husband went to his bench and came back with a hammer in each hand to settle the score. The testimony to his character, coupled with the sincerity implied by the two hammers, was enough to have him sent into quiet and brief seclusion .
18 But what are we to say of the type of motive disclosed in a journal published by the inmates of one of our Federal penitentiaries ? The author is a bank robber who confesses that money is not his object: My mania for power, socially, sexually, and otherwise can feel no degree of satisfaction until I feel sure I have struck the ultimate of submission and terror in the minds and bodies of my victims … It’s very difficult to explain all the queer fascinating sensations pounding and surging through me while I’m holding a gun on a victim, watching his body tremble and sweat … This is the moment when all the rationalized hypocrisies of civilization are suddenly swept away and two men stand there facing each other morally and ethically naked, and right and wrong are the absolute commands of the man behind the gun.
19 This confused echo of modern literature and modern science defines the choice before us. Anything deserving the name of cure for such a man presupposes not only a laborious individual psychoanalysis , with the means to conduct and to sustain it, socially and economically, but also a re-education of the mind, so as to throw into correct perspective the garbled ideas of Freud and Neitzsche, Gide and Dostoevski, which this power-seeker and his fellows have derived from the culture and temper of our times. Ideas are tenacious and give continuity to emotion. Failing a second birth of heart and mind, we must ask: How soon will this sufferer sacrifice a bank clerk in the interests of making civilization less hypocritical ? And we must certainly question the wisdom of affording him more than one chance. The abolitionists’ advocacy of an unconditional “let live” is in truth part of the same cultural tendency that animates the killer. The Western peoples’ revulsionfrom power in domestic and foreign policy has made of the state a sort of counterpart of the bank robber: both having power and neither knowing how to use it. Both waste lives because hypnotized by irrelevant ideas and crippled by contradictory emotions. If psychiatry were sure of its ground in diagnosing the individual case, a philosopher might consider whether such dangerous obsessions should not be guarded against by judicial homicide before the shooting starts.
20 I raise the question not indeed to recommend the prophylactic execution of potential murderers, but to introduce the last two perplexities that the abolitionists dwarf or obscure by their concentration on changing an isolated penalty. One of these is the scale by which to judge the offenses society wants to repress. I can for example imagine a truly democratic state in which it would be deemed a form of treason punishable by death to create a disturbance in any court or deliberative assembly. The aim would be to recognize the sanctity of orderly discourse in arriving at justice, assessing criticism and defining policy. Under such a law, a natural selection would operate to remove permanently from the scene persons who, let us say, neglect argument in favor of banging on the desk with their shoe. Similarly, a bullying minority in a diet, parliament or skupshtina would be prosecuted for treason to the most sacred institutions when fists or flying inkwells replace rhetoric. That the mere suggestion of such a law sounds ludicrous shows how remote we are from civilized institutions, and hence how gradual should be our departure from the severity of judicial homicide.
21 I say gradual and I do not mean standing still. For there is one form of barbarity in our law that I want to see mitigated before any other. I mean imprisonment. The enemies of capital punishment – and liberals generally – seem to be satisfied with any legal outcome so long as they themselves avoid the vicarious guilt of shedding blood. They speak of the sanctity of life, but have no concern with its quality. They give no impression of ever having read what it is certain they have read, from Wilde’s De Profundis to the latest account of prison life by a convicted homosexual. Despite the infamy of concentration camps, despite Mr. Charles Burney’s remarkable work, Solitary Confinement, despite riots in prisons, despite the round of escape, recapture and return in chains, the abolitionists’ imagination tells them nothing about the reality of being caged. They read without a qualm, indeed they read with rejoicing, the hideous irony of “Killer Gets Life”; they sign with relief instead of horror. They do not see and suffer the cell, the drill, the clothes, the stench , the food; they do not feel the sexual racking of young and old bodies, the hateful promiscuity , the insane monotony, the mass degradation, the impotent hatred. They do not remember from Silvio Pellico that only a strong political faith, with a hope of final victory, can steel a man to endure a long detention. They forget that Joan of Arc, when offered “life”, preferred burning at the stake. Quite of another mind, the abolitionists point with pride to the “model prisoners” that murderers often turn out to be. As if a model prisoner were not, first, a contradiction in terms, and second, an exemplarof what a free society should not want.
22 I said a moment ago that the happy advocates of the life sentence appear not to have understood what we know they have read. No more do they appear to read what they themselves write. In the preface to his useful volume of cases, Hanged in Error, Mr. Leslie Hale, M.P., refers to the tardy recognition of a minor miscarriage of justice – one year in jail: “The prisoner emerged to find that his wife had died and that his children and his aged parents had been removed to the workhouse. By the time a small payment had been assessed as ‘compensation’ the victim was incurably insane.” So far we are as indignant with the law as Mr. Hale. But what comes next? He cites the famous Evans case, in which it is very probable that the wrong man was hanged, and he exclaims: “While such mistakes are possible, should society impose an irrevocable sentence?” Does Mr. Hale really ask us to believe that the sentence passed on the first man, whose wife died and who went insane, was in any sense revocable? Would not any man rather be Evans dead than that other wretch “emerging” with his small compensation and his reasons for living gone?
23 Nothing is revocable here below, imprisonment least of all. The agony of a trial itself is punishment, and acquittalwipes out nothing. Read the heart-rending diary of William Wallace, accused quite implausibly of having murdered his wife and “saved” by the Court of Criminal Appeals – but saved for what ? Brutish ostracism by everyone and a few years of solitary despair. The cases of Adolf Beck, of Oscar Slater, of the unhappy Brooklyn bank teller who vaguely resembled a forger and spent eight years in Sing Sing only to “emerge” a broken, friendless, useless, “compensated” man – all these, if the dignity of the individual has any meaning, had better have been dead before the prison door ever opened for them. This is what counsel always says to the jury in the course of a murder trial and counsel is right: far better hang this man than “give him life.” For my part, I would choose death without hesitation. If that option is abolished, a demand will one day be heard to claim it as a privilege in the name of human dignity. I shall believe in the abolitionist’s present views only after he has emerged from twelve months in a convict cell.
24 The detached observer may want to interrupt here and say that the argument has now passed from reasoning to emotional preference. Whereas the objector to capital punishment feels that death is the greatest of evils, I feel that imprisonment is worse than death. A moment’s thought will show that feeling is the appropriate arbiter . All reasoning about what is right, civilized and moral rests upon sentiment, like mathematics. Only, in trying to persuade others, it is important to single out the fundamental feeling, the prime intuition, and from it to reason justly. In my view, to profess respect for human life and be willing to see it spent in a penitentiary is to entertain liberal feelings frivolously. To oppose the death penalty because, unlike a prison term, it is irrevocable is to argue fallaciously.
25 In the propaganda for abolishing the death sentence the recital of numerous miscarriages of justice commits the same error and implies the same callousness : What is at fault in our present system is not the sentence but the fallible procedure. Capital cases being one in a thousand or more, who can be cheerful at the thought of all the “revocable” errors? What the miscarriages point to is the need for reforming the jury system, the rules of evidence, the customs of prosecution, the machinery of appeal. The failure to see that this is the great task reflects the sentimentality I spoke of earlier, that which responds chiefly to the excitement of the unusual. A writer on Death and the Supreme Court is at pains to point but that when that tribunal reviews a capital case, the judges are particularly anxious and careful. What a left-handed complimentto the highest judicial conscience of the country! Fortunately, some of the champions of the misjudged see the issue more clearly. Many of those who are thought wrongly convicted now languish in jail because the jury was uncertain or because a doubting governor commuted the death sentence. Thus Dr. Samuel H. Sheppard, Jr., convicted of his wife’s murder in the second degree is serving a sentence that is supposed to run for the term of his natural life. The story of his numerous trials, as told by Mr. Paul Holmes, suggests that police incompetence, newspaper demagogy, public envy of affluence and the mischances of legal procedure fashioned the result. But Dr. Sheppard’s vindicator is under no illusion as to the conditions that this “lucky” evader of the electric chair will face if he is granted parole after ten years: “It will carry with it no right to resume his life as a physician. His privilege to practice medicine was blotted out with his conviction. He must all his life bear the stigma of parolee, subject to unceremonious return to confinement for life for the slightest misstep. More than this, he must live out his life as a convicted murderer.
26 What does the moral conscience of today think it is doing? If such a man is a dangerous repeater of violent acts? What right has the state to let him loose after ten years? What is, in fact, the meaning of a “life sentence” that peters out long before life? Paroling looks suspiciously like an expression of social remores for the pain of incarceration , coupled with a wish to avoid “unfavorable publicity” by freeing a suspect. The man is let out when the fuss has died down; which would mean that he was not under lock and key for our protection at all. He was being punished, just a little –for so prison seems in the abolitionist’s distorted view, and in the jury’s and the prosecutor’s whose “second-degree” murder suggests killing someone “just a little,”
27 If, on the other hand, execution and life imprisonment are judged too severe and the accused is expected to be harmless hereafter- punishment being ruled out as illiberal- what has society gained by wrecking his life and damaging that of his family?
28 What we accept, and what the abolitionist will clamp upon us all the more firmly if he succeeds, is an incoherence which is not remedied by the belief that second-degree murder merits a kind of second degree death; that a doubt as to the identity of a killer is resolved by commuting real death into intolerable life; and that our ignorance whether a maniac will strike again can be hedged against by measuring “good behavior” within the gates and then releasing the subject upon the public in the true spirit of experimentation.
29 There are some of thoughts I find I cannot escape when I read and reflect upon this grave subject. If, as I think, they are relevant to any discussion of change and reform, retain as they do on the direct and concrete perception of what happens, then the simple meliorists who expect to breathe a purer air by abolishing the death penalty are deceiving themselves and us. The issue is for the public to judge; but I for one shall not sleep easer for knowing that in England and American and the West generally a hundred more human beings are kept alive in degrading conditions to face a hopeless future; while others- possibly less conscious, certainly less controlled- benefit from a premature freedom dangerous alike to themselves and society. In short, I derive no comfort from the illusion that in giving up one manifest protection of the law-abiding, we who might well be in and of these three roles- victim, prisoner, licensed killer- have struck a blow for the sanctity of human life.
(from an American radio program presented by Ed Kay)
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NOTES
1. Jacques Barzun: university teacher and administrator since the 1920s, Jacques Barzun (1907-- ) has been dean of faculties and provost at Columbia University. Not only is he a distinguished author but a person of wide interests. His books, for example, include The House of Intellect; Berlioz and Romantic Century; Darwin, Marx, Wagner; and, with Wendell H. Tyler, A Catalogue of Crime. This well-organized essay is marked by its concern for the victim instead of the criminal
2. Victor Gollancz: English writer. Publications include: The Betrayal of the Left ; What Burchenwald Really Means ; Leaving Them to Their Fate ; Our Threatened Values, etc.
3. Koestler: Arthur Koestler (1905--), Hungarian-American author. Publications include: Spanish Testament ; Gladiators ; Darkness at Noon ; Scum of the Earth, etc.
4. C.H. Rolph: Cecil Rolph (C.H. Rolph) Hewitt (1901-- ), member of the editorial staff, New Statesman. Publications: Crime and Punishment; Commonsense About Crime and Punishment; (with Arthur Koestler ) Hanged by the Neck, etc.
5. Joyce: James Joyce (1882--1941), Irish writer, famous for his portrayal of life and character. He introduced new literary techniques, exploiting such devices as the interior monologue and the symbolic motif. His main work, Ulysses, was banned for 11 years after its publication in 1922 because of its frankness of description and freedom of vocabulary, but it eventually came to be recognized as one of the greatest works of literature.
6. Barry: Sir John Barry (1903-- ), Justice of the Supreme Court of Victoria, Australia; leader of Australian delegation to 1st (Geneva 1955) and 2nd (London 1960), U.N. Congresses on Prevention of Crime.
7. Quaker: a popular name for a member of the Society of Friends, a Christian religious sect founded in England around 1650 by George Fox; the Friend shave no formal creed, rites, liturgy, or priesthood and reject violence in human relations, including war. The society was organized in America by William Penn.
8. Episcopal: a member of the Episcopal Church believes that bishops are essential; especially a member of the Church of England, in contrast with Presbyterian or Nonconformist bodies.
9. the sixth commandment: the sixth in the Ten Commandments mentioned in the Old Testament of the Christian Bible. The Bible says the Ten Commandments were given to Moses by God on Mount Sinai. The sixth commandment runs as follow: "Thou Shah not Kill.
10. abuse: to rape or commit indecent assault on
11. crimes passionels: crimes of passion ; crimes committed under stress of extreme, compelling emotion like great anger, rage, fury, etc.
12. Freud: Sigmund Freud (1856--1939), Austrian physician and neurologist, who founded psychoanalysis, a new school of psychology embodying revolutionary and controversial views of human behavior. He also established a new system for treating behavior disorders.
13. Gide: Andr6 Gide (1869--1951), French writer, who was a dominant figure in European letters during the first half of the 20th century. Gide pointed out the moral sclerosis of bourgeois society, which is unable to see the reality lying beyond inherited taboos and dogmas, especially in religion and sex. It was the moral implications of Gide's personality and work that caused the hottest debate among his contemporaries. Gide was both attacked as a satanic perverter and acclaimed as a liberator. Gide's work comprises some 60 titles-fiction, drama, criticism, etc. He received the Nobel Prize in literature in 1947.
14. Dostoevski: Fyodor Milhailovich Dostoevski (Dostoyevsky) ( 1821-- 1881 ),Russian novelist and one of the most seminal writers in European literature. Among his well-known publications are: Crime and Punishment; The Idiot; The Possessed; The Brothers Karamazov, etc. Dostoevski's novels are powerful studies in crime, guilt, religious torment, and faith.
15. Wilde: Oscar Wilde (1854--1900), Irish poet and dramatist, a champion of "Art for Art's Sake. " Among his well-known plays are: Lady Windermere's Fan; A Woman of No Importance; An Ideal Husband and The Importance of Being Earnest. Accused of homosexual practices, he was arrested and convicted on the morals charge, and served two years in Reading Gaol (1895--1897). There he wrote De Profundis in which he describes the miseries and sufferings of prison life.
16. Pellico: Silvio Pellieo (1788--1854), Italian poet and dramatist. He was arrested in 1820 as a member of the Carbonari and condemned to death, but later commuted to 15 years imprisonment. He was released in 1830, his health broken by his suffering. He recorded his prison sufferings in his book My Prisons.
17. Hale: Leslie Hale (1902-- ), Labor M.P., resigned 1968. Publications: Thirty Who Were Tried ; Hanged in Error, etc.
18. Court of Criminal Appeals: English court of law, established 1907 before which date no appeal could be made from a jury's verdict on a criminal trial. A person convicted on a criminal trial can now appeal to this court against his conviction on a question of law or of fact, and in certain cases against his sentence.
19. murder in the second degree: The law in the United States recognizes two classes of murder: first-degree and second-degree. First-degree murder includes not only malice but also premeditation--thought willful and deliberate killing. All other kinds of murder are considered second-degree murder and not punishable by capital punishment.