The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter XII

Section II


1. The punishment of death is not convertible to profit: it cannot be applied to the purpose of compensation. In so far as compensation might be derived from the labour of the delinquent, the very source of the compensation is destroyed.

2. In point of frugality, it is pre-eminently defective. So far from being convertible to profit, to the community it produces a certain loss, both in point of wealth and strength. In point of wealth, a man chosen at random is worth to the public that portion of the whole annual income of the state which results from its division by the number of persons of which it consists. The same mode of calculation will determine the loss in respect of strength. But the value of a man who has been proved guilty of some one or other of those crimes for which capital punishment is denounced, is not equal to that of a man taken at random. Of those by whom a punishment of this sort is incurred, nine out of ten have divested themselves of all habits of regular industry; they are the drones of the hive: and with respect to them, death is therefore not an ineligible mode of punishment, except in comparison with confinement and hard labour, by which there is a chance of their being reformed and rendered of some use to society.

2. Equability is another point, and that a most important one, in which this punishment is eminently deficient. To a person taken at random, it is upon an average a very heavy punishment, though still subject to considerable variation. But to a person taken out of the class of first-rate delinquents, it is liable to still greater variation. To some it is as great as to a person taken at random; but to many it is next to nothing.

Death is the absence of all pleasures indeed, but at the same time of all pains. When a person feels himself under temptation to commit a crime punishable with death, his determination to commit it or not to commit it is the result of the following calculation. He ranges on one side the clear portion of happiness he thinks himself likely to enjoy in case of his abstaining: on the other, he places the clear happiness he thinks himself likely to enjoy in case of his committing the crime, taking into the account the chance there appears to him to be, that the punishment threatened will abridge the duration of that happiness.

Now then, if in the former case there appears to be no clear happiness likely to accrue to him, much more if there appears to be a clear portion of unhappiness; in other words, if the clear portion of happiness likely to befal him appears to be equal to 0 (Zero), or much more if it appears to be negative, the pleasure that constitutes the profit of the crime will act upon him with a force that has nothing to oppose it. The probability of seeing it brought to an abrupt period by death will subtract more or less from the balance; but at any rate there will be a balance.

Now this is always the case with a multitude of malefactors. Rendered averse to labour by natural indolence or disuse, or hurried away by the tide of some impetuous passion, they do look upon the pleasures to be obtained by honest industry as not worth living for, when put in competition with the pains: or they look upon life as not worth keeping, without some pleasure or pleasures which, to persons in their situation, are not attainable but by a crime.

I do not say that this calculation is made with all the formality with which I have represented it. I do not say that in casting up the sum of pains on the one side and pleasures on the other, exact care is always used to take every item into the account. But however, well or ill, the calculation is made: else a man could not act as he is supposed to do.

Now then, in all these cases, which unhappily are but too frequent, it is plain the punishment of death can be of no use.

It may be said, no more would any other punishment. For any other punishment, to answer its purpose, must have the effect of deterring or otherwise disabling the person in question from committing the like crimes in future. If then he is thus deterred or disabled, he is reduced to a situation in which by the supposition, death was to him an event desirable upon the whole. Being then in his power, he will produce it.

The conclusion, however, is not necessary. There are several reasons why the same impulse which is strong enough to dispose a man to meet death at the hands of justice should not be strong enough to dispose him to bring on himself that event with his own hand.

In the first place, the infliction of it as a punishment is an event by no means certain. It is itself uncertain; and the passion he is supposed to be influenced by, withdrawing his attention from he chances that are in favour of its happening, makes it look still more uncertain.

In the next place, although it were certain, it is at any rate distant: and the mortification he undergoes, from the not possessing the object of his passion, is present.

Thirdly, Death is attended with much more pain when a man has to inflict it on himself with his own hand, than when all he does is simply to put himself in a situation in which it will be inflicted on him by the hands of another, or by the operation of some physical cause. To put himself in such a situation, requires but a single and sudden volition, and perhaps but a single act in consequence, during the performance of which he may keep his eyes shut, as it were, against the prospect of the pain to which he is about to subject himself. The moment of its arrival is at an uncertain distance. The reverse is the case where a man is to die by his own hand. His resolution must be supported during the whole period of time that is necessary to bring about the event. The manner is foreseen and the time immediate. It may be necessary that even after a part of the pain has been incurred, the resolution should go on and support itself, while it prompts him to add further pain before the purpose is accomplished.

Accordingly, when people are resolved upon death, it is common for them, when they have an opportunity, to choose to die rather by the hand of another than by their own. Thus Saul chose to die by the hand of his armour-bearer; Tiberius Gracchus by that of his freeman. So again the Emperor Nero by one of his minions.

Fourthly, when a man is prompted to seek relief in death, it is not so much by the sudden vehemence of some tempestuous passion, as by a close persuasion that the miseries of his life are likely to be greater than the enjoyments; and, in consequence, when the resolution is once taken, to rest satisfied without carrying it immediately into effect; for there is not a more universal principle of human conduct, than that which leads a man to satisfy himself for awhile with the power, without proceeding immediately, perhaps without proceeding ever, to the act. It is the same feeling which so often turns the voluptuous man to a miser.

Now this is likely enough to be the condition of those who, instead of death, may have been sentenced to another punishment. They defer the execution of their design from hour to hour: sometimes for want of means, sometimes for want of inclination, till at last some incident happens that puts in their heads a train of thought which in the end diverts them from their resolution. In the mental as well as in the material part of the human frame, there is happily a strong disposition to accommodate itself by degrees to the pressure of forced and calamitous situations. When a great artery is cut or otherwise disabled, the circumjacent smaller ones will stretch and take upon themselves the whole duty of conveying to the part affected the necessary supplies. Loss of sight improves the faculty of feeling. A left hand learns to perform the offices of the right, or even the feet, of both. An inferior part of the alimentary canal has learned to perform the office, and even to assume the texture of the stomach.

The mind is endowed with no less elasticity and docility, in accommodating itself to situations which at first sight appeared intolerable. In all sufferings there are occasional remissions, which in virtue of the contrast are converted into pleasure. How many instances are there of men who, having suddenly fallen from the very pinnacle of grandeur into the gulphs of misery, have, when the old sources of enjoyment were irrecoverably dry, gradually detached their minds from all recollections of their customary enjoyments, and created for themselves fresh sources of happiness. The Comte de Lauzun's Spider, the straw-works of the Bicêtre, the skilfully wrought pieces of carved work made by the French prisoners, not to mention others, are sufficient illustrations of this remark.

3. Variability is a point of excellence in which the punishment of death is more deficient than in any other. It subsists only in one degree; the quantity of evil can neither be increased or lessened. It is peculiarly defective in the case of the greater part of the most malignant and formidable species of malefactors---that of professed robbers and highwaymen.

4. The punishment of death is not remissible.[2] Other species of afflictive punishments it is true are exposed to the same objection, but though irremissible they are not irreparable. For death there is no remedy.

No man, how little soever he may have attended to criminal procedure, but must have been struck at the very slight circumstances upon which the life of a man may depend; and who does not recollect instances in which a man has been indebted for his safety to the occurrence of some unlooked-for accident, which has brought his innocence to light. The risk incurred is doubtless greater under some systems of jurisprudence than under others. Those which allow the torture to supply the insufficiency of evidence derived from other sources: those in which the proceedings are not public, are, if the expression may be used, surrounded with precipices. But it may be said, is there or could there be devised any system of penal procedure which could insure the Judge from being misled by false evidence or the fallibility of his own judgment. No; absolute security in this branch of science is a point which, though it can never be attained, may be much more nearly approached than it has hitherto been. Judges will continue fallible, witnesses to depose falsehood or to be deceived; whatever number may depose to the same fact, the existence of that fact is not rendered certain; as to circumstantial evidence, that which is deemed incapable of explanation, but by supposing the existence of the crime, may be the elect of chance or of arrangements made with the view of producing deception. The only sort of evidence that appears entitled to perfect conviction, is the voluntary confession of the crime by the party accused, hut this is not frequently made, and does not produce absolute certainty, since instances have not been wanting, as in the case of witchcraft, in which individuals have acknowledged themselves guilty, when the pretended crime was impossible.

These are not purely imaginary apprehensions drawn from the region of possibility: the criminal records of every country afford various instances of these melancholy errors; and these instances, which, lay the concurrence of a number of extraordinary events have attained notoriety, cannot fail to excite a suspicion, that though unknown, many other innocent victims may have perished.

It must not be forgotten either, that the cases in which the word evidence is most apt to be employed, are not unfrequently those in which the testimony adduced is exposed to most suspicion. When the pretended crime is among the number of those that produce antipathy towards the offender, or which excite against him a party feeling, the witnesses almost unconsciously act as accusers. They are the echoes of the public clamour. The fermentation goes on increasing, and all doubt is laid aside. It was a concurrence of such circumstances which seduced first the people and then the Judges in the melancholy affair of Calas.

These melancholy cases in which the most violent presumptions, which fall little short of absolute certainty, are accumulated against an individual whose innocence is afterwards recognized, carry with them their own excuse: they are the cruel effects of chance, and do not altogether destroy public confidence. To produce any such effect we must be able to detect in such erroneous decisions proofs of temerity, ignorance, and precipitation, an obstinate and blind adherence to vicious forms, and of those determined prejudices which the very situation of Judge is apt to generate. A Judge, whose business it is to deal with human nature in its worst forms, having daily before his eyes the false pretences and mendacity to which the guilty have recourse, perpetually contriving expedients for unveiling imposture, gradually ceases to believe in the innocence of those accused, and by anticipation expects to find a criminal using all his arts to deceive him. That it is the character of all Judges to be actuated by these prejudices I am far from thinking; but when the propriety of arming men with the power of inflicting the punishment of death is the question under consideration, it ought not to be forgotten, before putting into their hands the fatal weapon, that they are not exempted from the weaknesses of humanity, that their wisdom is not increased, neither are they rendered infallible by thus arming them.

The danger attending the use of capital punishment appears in a more striking point of view when we reflect on the use that may be made of it by men in power, to gratify their passions, by means of a Judge easily intimidated or corrupted. In such cases, the iniquity covered with the robe of justice may escape, if not all suspicion, at least the possibility of proof. Capital punishment, too, affords to the prosecutor as well as to the Judge, an advantage that in all other modes is wanting: I mean greater security against detection, by stifling by death all danger of discovery arising from the delinquent, at least: while he lives, to, whatever state of misery he may be reduced, the oppressed may meet with some fortunate event by which his innocence may be proved, and he may become his own avenger. A judicial assassination, justified in the eyes of the public by a false accusation, with almost complete certainty assures the triumph of those who have been guilty of it. In a crime of an inferior degree, they would have had everything to fear; but the death of the victim seals their security.

If we reflect on those very unfrequent occurrences, but which may at any time recur, those periods at which the Government degenerates into anarchy and tyranny, we shall find that the punishment of death established by law, is a weapon ready prepared, which is more susceptible of abuse than any other mode of punishment. A tyrannical Government, it is true, may always reestablish this mode of punishment after it has been abolished by the Legislature. But the introducing what would then become an innovation, would not be unattended with difficulty: the violence of which it was to be the precursor would be too much exposed, the tocsin would be sounded. Tyranny is much more at its ease when exercised under the sanction of law, when there is no appearance of any departure from the ordinary course of justice, and when it finds the minds of people already reconciled and accustomed to this mode of punishment. The Duke of Alba, ferocious as he was, would not have dared to sacrifice so many thousand victims in the Low Countries, if it had not been a commonly received opinion that heresy was a crime which merited the punishment of death. Biren, not less cruel than the Duke of Alba, Biren, who peopled the deserts of Siberia with exiles, caused them previously to be mutilated, that being the most severe punishment that was in use in that country; he very rarely ventured to punish them capitally, because capital punishment was not in use. So little do even the most arbitrary despots dare to violate established customs. Hence we may draw a strong reason for seizing upon periods of tranquillity for destroying these dangerous instruments, which, though no longer dreaded when covered with rusts are with such facility brought into use again, when passion invites their employment.

The objection arising from the irremissibility of the punishment of death, applies to all cases, and can be removed only by its complete abolition. Upon this occasion it is necessary to bear in mind that there are two branches of security, for each of which it is necessary to make provision. Security against the errors and corruptions in judicial procedure, and security against crimes. If the latter were not to be attained but at the expense of the former, there should be no room for hesitation. With respect to crimes, from whom is it that the terror is felt? From every person that is capable of committing a crime, that is to say, from all men, and at all times. With respect to the errors and corruptions of justice, these are the exceptions, the accidental and rare occurrences.

This punishment is far from being popular: and it becomes less and less so every day in proportion as mankind become more enlightened, and their manners more softened. The people flock in crowds to an execution; but this eagerness, which at first might appear so disgraceful to humanity, does not proceed from the pleasure expected from the sight of men in the agonies of death, it arises from the pleasure of having the passions strongly excited by a tragic scene. There is, however, one case in which it does seem to be popular, and that in a very high degree; I mean the case of murder. The attachment seems to be grounded partly on the fondness for analogy, partly on the principle of vengeance, and partly perhaps by the fear which the character of the criminal is apt to inspire. Blood it is said will have blood, and the imagination is flattered with the notion of the similarity of the suffering, produced by the punishment, with that inflicted by the criminal.

In other cases, the punishment of death is unpopular, and this unpopularity produces different dispositions all equally contrary to the ends of justice; a disposition on the part of the individuals injured not to prosecute the offenders for fear of bringing them to the scaffold; a disposition on the part of the public to favour their escape; a disposition on the part of the witnesses to withhold their testimony, or to weaken its effect; a disposition on the part of the Judges to allow of a merciful prevarication in favour of the accused; and all these anti-legal dispositions render the execution of the laws uncertain, without referring to that loss of respect which follows upon its being considered meritorious to prevent their execution.

[RP, Book II, Chapter XII, §1] [RP, Book II, Chapter XII, §3]