On the Death Penalty
The news having been brought to Athens that citizens had been condemned to death in the city of Argos, people ran to the temples, where the gods were called upon to turn Athenians away from such cruel and dire thoughts. I come to ask, not the gods, but legislators — who should be the organs and the interpreters of the eternal laws that the divinity dictated to men — to erase from the code of the French the blood laws that command judicial murders, and that their morals and their new constitution reject. I want to prove to them: 1- that the death penalty is essentially unjust and, 2- that it isn’t the most repressive of penalties and that it multiplies crimes more than it prevents them.
Outside of civil society, if a bitter enemy makes an attempt on my life or, pushed away twenty times, he returns again to ravage the field that I cultivated with my own hands; since I have only my individual strength to oppose to his I must either perish or kill him, and the law of natural defense justifies and approves me. But in society, when the force of all is armed against only one, what principle of justice could authorize it to kill him? What necessity can absolve it? A victor who kills his captive enemies is called a barbarian! A grown man who kills a child that he could disarm and punish seems to us a monster! An accused man condemned by society is nothing else for it but a defeated and powerless enemy. Before it, he is weaker than a child before a grown man.
Thus, in the eyes of truth and justice these scenes of death that it orders with so much ceremony, are nothing but cowardly assassinations, nothing but solemn crimes committed not by individuals but by entire nations using legal forms. However cruel, however extravagant the laws, do not be surprised: they are the work of a few tyrants, they are the chains with which they weigh down the human race, they are the arms with which they subjugate it, they were written in blood. It isn’t permitted to put to death a Roman citizen; this was the law the people passed. But Scylla was victorious and said: All those who bore arms against me are worthy of death. Octavian and his companions in crime confirmed this law.
It was a crime worthy of death under Tiberius to praise Brutus. Caligula condemned to death those who were so sacrilegious as to undress before the image of the emperor. Once tyranny invented the crime of lèse-majesté — which were actions either indifferent or heroic — who could have dared to think that it merited a penalty more gentle than death without rendering himself guilty of lèse-majesté?
When fanaticism, born of the monstrous union of ignorance and despotism, invented in its turn the crime of divine lèse-majesté, when it conceived in its delirium the project of avenging god himself, was it not necessary that it offer him blood, and that they bring him down to the level of the monsters who said they were his image?
The death penalty is necessary, say the partisans of ancient and barbarous routine. Without it there is no brake strong enough for crime. Who told you this? Have you calculated all the gears by which penal laws can act on human sensibility? Alas, before death how much physical and moral pain can man endure?
The desire to live cedes before pride, the most imperious of all the passions that master the heart of man. The most terrible of all punishments for social man is opprobrium, is the overwhelming sight of public execration. When the legislator can strike the citizen in so many sensitive places and in so many ways, why would he reduce himself to employing the death penalty? Punishments aren’t imposed to torment the guilty, but in order to prevent crime by the fear of incurring them.
The legislator who prefers death and atrocious penalties to the gentler means in his power outrages public feeling and weakens the moral sentiment among the people he governs; like a clumsy preceptor who, by the frequent use of cruel punishments, stupefies and degrades the soul of his student; he wears out and weakens the springs of government by wanting to wind them up too strongly.
The legislator who establishes this penalty renounces the salutary principle that the most effective way to repress crimes is to adapt the punishment to the character of the different passions that produce it, and to punish them, so to say, by themselves. It confounds all ideas, it troubles all relations, and openly contradicts the goal of penal laws.
The death penalty is necessary, you say. If this is true, then why have several peoples done without it? By what fatality were these people the wisest, the happiest and the freest? If the death penalty is the most apt to prevent great crimes, then they should then have been most rare among the peoples who adopted and used it. But the facts are precisely the contrary. Witness Japan: the death penalty and tortures are nowhere more widely used, and nowhere are crimes so frequent and so atrocious. One might almost say that the Japanese want to dispute in ferocity the barbaric laws that outrage and irritate them. Did the Greek republics, where penalties were moderate and where the death penalty was either infinitely rare or absolutely unknown, offer more crime and less virtue than the countries governed by blood laws? Do you think that Rome was soiled with more crimes when in the days of its glory, the Porcian Laws wiped out the severe laws carried out by kings and decimvirs, than it was under Scylla, who revived them, and under the emperors, who carried their rigor to a point of excess worthy of their infamous tyranny. Has Russia been in turmoil since the despot who governs it entirely suppressed the death penalty, as if by this act of humanity and philosophy he wanted to expiate the crime of holding millions of men in the yoke of absolute power?
Listen to the voice of justice and reason. It cries out to you that human judgements are never certain enough to justify a society of men subject to error dealing death to another man. Even if you could imagine the most perfect judicial order, even if you had found the most upright and enlightened judges, there would still remain some room for error or caution. Why forbid yourselves the means of repairing them? Why condemn yourselves to the inability to lend a helping hand to oppressed innocence? What do sterile regrets, illusory reparations matter to a vain shadow, to insensible ash? They are the sad testimony of the barbaric temerity of your penal laws. Take from a man the possibility to expiate his crime by repentance or acts of virtue; pitilessly close off to him any return to virtue, self-esteem, rush his descent, so to speak, into the tomb still covered by the recent stain of his crime is, in my eyes, the most horrible refinement in cruelty.
The first obligation of a legislator is to form and preserve public morals, the source of all freedom, source of all social happiness. When in running to a particular goal he turns away from this general and essential goal he commits the most vulgar and dire of errors. The king must thus present to the people the purest model of justice and reason. If in place of this powerful, calm and moderate severity that should characterize it they place anger and vengeance; if they spill human blood that they could spare and that they have no right to spread; if they spread out before the people cruel scenes and cadavers wounded by torture, it then alters in the hearts of citizens the ideas of the just and the unjust; they plant the seed in the midst of society of ferocious prejudices that will produce others in their turn. Man is no longer for man so sacred an object: we have a less grand idea of his dignity when public authority puts his life at risk. The idea of murder inspires less fear when the law itself gives the example and the spectacle. The horror of crime is diminished when it is punished by another crime. Do not confuse the effectiveness of a penalty with the excess of severity: the one is absolutely opposed to the other. Everything seconds moderate laws; everything conspires against cruel laws.
It has been observed that in free countries crime was more rare and penal laws more gentle. All ideas hold together. Free countries are those where the rights of man are respected and where, consequently, the laws are just. Where they offend humanity by an excess of rigor this is a proof that the dignity of man is not known there, that that of the citizen doesn’t exist. It is a proof that the legislator is nothing but a master who commands slaves and who pitilessly punishes them according to his whim. I thus conclude that the death penalty should be abrogated.