The Death Penalty

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Title:     The Death Penalty
Author: Ambrose Bierce [More Titles by Bierce]

I.

"DOWN with the gallows!" is a cry not unfamiliar in America. There is always a movement afoot to make odious the just principle of "a life for a life"--to represent it as "a relic of barbarism," "a usurpation of the divine authority," and the rotten rest of it The law making murder punishable by death is as purely a measure of self-defense as is the display of a pistol to one diligently endeavoring to kill without provocation. Even the most brainless opponent of "capital punishment" would do that if he knew enough. It is in precisely the same sense an admonition, a warning to abstain from crime. Society says by that law: "If you kill one of us you die," just as by display of the pistol the individual whose life is attacked says: "Desist or be shot." To be effective the warning in either case must be more than an idle threat. Even the most unearthly reasoner among the gallows-downing unfortunates would hardly expect to frighten away an assassin who knew the pistol to be unloaded. Of course these queer illogicians can not be made to understand that their position commits them to absolute non-resistance to any kind of aggression, and that is fortunate for the rest of us, for if as Christians they frankly and consistently took that ground we should be under the miserable necessity of respecting them.

We have good reason to hold that the horrible prevalence of murder in this country is due to the fact that we do not execute our laws--that the death penalty is threatened but not inflicted--that the pistol is not loaded. In civilized countries, where there is enough respect for the laws to administer them, there is enough to obey them. While man still has as much of the ancestral brute as his skin can hold widiout cracking we shall have thieves and demagogues and anarchists and assassins and persons with a private system of lexicography who define hanging as murder and murder as mischance, and many another disagreeable creation, but in all this welter of crime and stupidity are areas where human life is comparatively secure against the human hand. It is at least a significant coincidence that in these the death penalty for murder is fairly well enforced by judges who do not derive any part of their authority from those for whose restraint and punishment they hold it. Against the life of one guiltless person the lives of ten thousand murderers count for nothing; their hanging is a public good, without reference to the crimes that disclose their deserts. If we could discover them by other signs than their bloody deeds they should be hanged anyhow. Unfortunately we must have a death as evidence. The scientists who will tell us how to recognize the potential assassin, and persuade us to kill him, will be the greatest benefactor of his century.

What would these enemies of the gibbet have?--these lineal descendants of the drunken mobs that pelted the hangmen at Tyburn Tree; this progeny of criminals, which has so defiled with the mud of its animosity the noble office of public executioner that even "in this enlightened age" he shirks his high duty, entrusting it to a hidden or unnamed subordinate? If murder is unjust of what importance is it whether it's punishment by death be just or not?--nobody needs to incur it.

Men are not drafted for the death penalty; they volunteer. "Then it is not deterrent," mutters the gentleman whose rude forefather pelted the hangman. Well, as to that, the law which is to accomplish more than a part of its purpose must be awaited with great patience. Every murder proves that hanging is not altogether deterrent; every hanging that it is somewhat deterrent--it deters the person hanged. A man's first murder is his crime, his second is ours.

The voice of Theosophy has been heard in favor of downing the gallows. As usual the voice is a trifle vague and it babbles. Clear speech is the outcome of clear thought, and that is something to which Theosophists are not addicted. Considering their infirmity in that way, it would be hardly fair to take them as seriously as they take themselves, but when any considerable number of apparently earnest citizens unite in a petition to the Governor of their State, to commute the death sentence of a convicted assassin without alleging a doubt of his guilt the phenomenon challenges a certain attention to what they do allege. What these amiable persons hold, it seems, is what was held by Alphonse Karr: the expediency of abolishing the death penalty; but apparently they do not hold, with him, that the assassins should begin. They want the State to begin, believing that the magnanimous example will effect a change of heart in those about to murder. This, I take it, is the meaning of their assertion that "death penalties have not the deterring influence which imprisonment for life carries." In this they obviously err: death deters at least the person who suffers it--he commits no more murder; whereas the assassin who is imprisoned for life and immune from further punishment may with impunity kill his keeper or whomsoever he may be able to get at. Even as matters now are, the most incessant vigilance is required to prevent convicts in prison from murdering their attendants and one another. How would it be if the "life-termer" were assured against any additional inconvenience for braining a guard occasionally, or strangling a chaplain now and then? A penitentiary may be described as a place of punishment and reward; and under the system proposed the difference in desirableness between a sentence and an appointment would be virtually effaced. To overcome this objection a life sentence would have to mean solitary confinement, and that means insanity. Is that what these Theosophical gentlemen propose to substitute for death?

These petitioners call the death penalty "a relic of barbarism," which is neither conclusive nor true. What is required is not loose assertion and dogs-eared phrases, but evidence of futility, or, in lack of that, cogent reasoning. It is true that the most barbarous nations inflict the death penalty most frequently and for the greatest number of offenses, but that is because barbarians are more criminal in instinct and less easily controlled by gentle methods than civilized peoples. That is why we call them barbarous. It is not so very long since our English ancestors punished more than forty kinds of crime with death. The fact that the hangman, the boiler-in-oil and the breaker-on-the-wheel had their hands full does not show that the laws were futile; it shows that the dear old boys from whom we are proud to derive ourselves were a bad lot--of which we have abundant corroborative evidence in their brutal pastimes and in their manners and customs generally. To have restrained that crowd by the rose-water methods of modern penology--that is unthinkable.

The death penalty, say the memorialists, "creates blood-thirstiness in the unthinking masses and defeats its own ends. It is a cause of murder, not a check." These gentlemen are themselves of "the unthinking masses"--they do not know how to think. Let them try to trace and lucidly expound the chain of motives lying between the knowledge that a murderer has been hanged and the wish to commit a murder. How, precisely, does the one beget the other? By what unearthly process of reasoning does a man turning away from the gallows persuade himself that it is expedient to incur the danger of hanging? Let us have pointed out to us the several steps in that remarkable mental progress. Obviously, the thing is absurd; one might as reasonably say that contemplation of a pitted face will make a man go and catch smallpox, or the spectacle of an amputated limb on the scrap-heap of a hospital tempt him to cut off his arm.

"An eye for an eye and a tooth for a tooth," says the Theosophist, "is not justice. It is revenge and unworthy of a Christian civilization." It is exact justice: nobody can think of anything more accurately just than such punishments would be, whatever the motive in awarding them. Unfortunately such a system is not practicable, but he who denies its absolute justice must deny also the justice of a bushel of corn for a bushel of corn, a dollar for a dollar, service for service. We can not undertake by such clumsy means as laws and courts to do to the criminal exactly what he has done to his victim, but to demand a life for a life is simple, practicable, expedient and (therefore) right.

Here are two of these gentlemen's dicta, between which they inserted the one just considered, though properly they should go together in frank inconsistency:

"6. It [the death penalty] punishes the innocent a thousand times more than the guilty. Death is merciful to the tortures which the living relatives must undergo. And they have committed no crime."

"8. Death penalties have not the deterring influence which imprisonment for life carries. Mere death is not dreaded. See the number of suicides. Hopeless captivity is much more severe."

Merely noting that the "living relatives" whose sorrows so sympathetically affect these soft-hearted and soft-headed persons are those of the murderer, not those of his victim, let us consider what they really say, not what they think they say: "Death is no very great punishment, for the criminal doesn't mind it much, but hopeless captivity is a very great punishment indeed Therefore, let us spare the assassin's family the tortures they will suffer if we inflict the lighter penalty. Let us make it easier for them by inflicting the severer one."

There is sense for you!--sense of the sound old fruity Theosophical sort--the kind of sense that has lifted "The Beautiful Cult" out of the dark domain of reason into the serene altitudes of inexpressible Thrill!

As to "hopeless captivity," though, there is no such thing. In legislation, today can not bind tomorrow. By an act of the Legislature--even by a constitutional prohibition, we may do away with the pardoning power; but laws can be repealed, constitutions amended.

The public has a short memory, signatures to petitions in the line of mercy are had for the asking, and tender-hearted Governors are familiar afflictions. We have life sentences already, and sometimes they are served to the end--if the end comes soon enough! but the average length of "life imprisonment" is, I am told, a little more than seven years. Hope springs eternal in the human beast, and matters simply can not be so arranged that in entering the penitentiary he will "leave hope behind." Hopeless captivity is a dream.

I quote again:

"9. Life imprisonment is the natural and humane check upon one who has proven his unfitness for freedom by taking life deliberately."

What! it is no longer "much more severe" than the "relic of barbarism?" In the course of a half dozen lines of petition it has become "humane". Truly these are lightning changes of character! It would be pleasing to know just what these worthy Theosophers have the happiness to think that they think.

"It is the only punishment that receives the consent of conscience."

That is to say, their conscience and that of the convicted assassin.

"Taking the life of a murderer does not restore the life he took therefore, it is a most illogical punishment. Two wrongs do not make a right."

Here's richness! Hanging an assassin is illogical because it does not restore the life of his victim; incarceration does; therefore, incarceration is logical--_quod erat demonstrandum_.

Two wrongs certainly do not make a right, but the veritable thing in dispute is whether taking the life of a life-taker is a wrong. So naked and unashamed an example of _petitio principii_ would disgrace a debater in a pinafore. And these wonder-mongers have the incredible effrontery to babble of "logic"! Why, if one of them were to meet a syllogism in a lonely road he would run away in a hundred and fifty directions as hard as ever he could hook it. One is almost ashamed to dispute with such intellectual cloudings.

Whatever an individual may rightly do to protect himself society may rightly do to protect him, for he is a part of itself. If he may rightly take life in defending himself society may rightly take life in defending him. If society may rightly take life in defending him it may rightly threaten to take it. Having rightly and mercifully threatened to take it, it not only rightly may take it, but expediently must.

The law of a life for a life does not altogether prevent murder. No law can altogether prevent any form of crime, nor is it desirable that it should. Doubtless God could so have created us that our sense of right and justice could have existed without contemplation of injustice and wrong, as doubtless he could so have created us that we could have felt compassion without a knowledge of suffering, but doubtless he did not. Constituted as we are, we can know good only by contrast with evil. Our sense of sin is what our virtues feed upon; in the thin air of universal morality the altar-fires of honor and the beacons of conscience could not be kept alight A community without crime would be a community without warm and elevated sentiments--without the sense of justice, without generosity, without courage, without magnanimity--a community of small, smug souls, uninteresting to God and uncoveted by the Devil. We can have too much of crime, no doubt; what the wholesome proportion is none can say. Just now we are running a good deal to murder, but he who can gravely attribute that phenomenon, or any part of it, to infliction of the death penalty, instead of virtual immunity from any penalty at all, is justly entitled to the innocent satisfaction that comes of being a simpleton.

The New Woman is against the death penalty, naturally, for she is hot and hardy in the conviction that whatever is is wrong. She has visited this world in order to straighten things about a bit, and is in distress lest the number of things be insufficient to her need. The matter is important variously; not least so in its relation to the new heaven and the new earth that are to be the outcome of woman suffrage. There can be no doubt that the vast majority of women have sentimental objections to the death penalty that quite outweigh such practical considerations in its favor as they can be persuaded to comprehend. Aided by the minority of men afflicted by the same mental malady, they will indubitably effect its abolition in the first lustrum of their political activity. The New Woman will scarcely feel the seat of power warm beneath her before giving to the assassin's "unhand me villain!" the authority of law. So we shall make again the old experiment, discredited by a thousand failures, of preventing crime by tenderness to caught criminals. And the criminal uncaught will treat us to a quality of toughness notably augmented by the Christian spirit of the regime.

 

II.

As to painless executions, the simple and practical way to make them both just and popular is the adoption by murderers of a system of painless assassinations. Until this is done there seems to be no hope that the people will renounce the wholesome discomfort of the style of executions endeared to them by memories and associations of the tenderest character. There is also, I fancy, a shaping notion in the public mind that the penologists and their allies have gone about as far as they can safely be permitted to go in the direction of a softer suasion of the criminal nature toward good behavior. The modern prison has become a rather more comfortable habitation than the dangerous classes are accustomed to at home. Modern prison life has in their eyes something of the charm and glamor of an ideal existence, like that in the Happy Valley from which Rasselas had the folly to escape. Whatever advantages to the public may be secured by abating the rigors of imprisonment and inconveniences incident to execution, there is this objection, it makes them less deterrent. Let the penologers and philanthrope, have their way and even hanging might be made so pleasant and withal so interesting a social distinction that it would deter nobody but the person hanged. Adopt the euthanasian method of electricity, asphyxia by smothering in rose-leaves, or slow poisoning with rich food, and the death penalty may come to be regarded as the object of a noble ambition to the _bon vivant_, and the rising young suicide may go and murder somebody else instead of himself in order to receive a happier dispatch than his own 'prentice hand can assure him.

But the advocates of agreeable pains and penalties tell us that in the darker ages, when cruel and degrading punishment was the rule, and was freely inflicted for every light infraction of the law, crime was more common than it is now; and in this they appear to be right. But they one and all overlook a fact equally obvious and vastly significant: that the intellectual, moral and social condition of the masses was very low. Crime was more common because ignorance was more common, poverty was more common, sins of authority, and therefore hatred of authority, were more common. The world of even a century ago was a quite different world from the world of today, and a vastly more uncomfortable one. The popular adage to the contrary notwithstanding, human nature was not by a long cut the same then that it is now. In the very ancient time of that early English king, George III, when women were burned at the stake in public for various offenses and men were hanged for "coining" and children for theft, and in the still remoter period, (circa 1530) when poisoners were boiled in several waters, divers sorts of criminals were disemboweled and some are thought to have undergone _the pene forte et dure_ of cold-pressing (an infliction which the pen of Hugo has since made popular--in literature)--in these wicked old days it is possible that crime flourished, not because of the law's severity, but in spite of it. It is possible that our respected and respectable ancestors understood the situation as it then was a trifle better than we can understand it on the hither side of this gulf of years, and that they were not the reasonless barbarians that we think them to have been. And if they were, what must have been the unreason and barbarity of the criminal element with which they had to deal?

I am far from thinking that severity of punishment can have the same restraining effect as probability of some punishment being inflicted; but if mildness of penalty is to be superadded to difficulty of conviction, and both are to be mounted upon laxity in detection, the "pile" will be "complete" with a vengeance. There is a peculiar fitness, perhaps, in the fact that all these ideas for comfortable punishment should be urged at a time when there appears to be a tolerably general disposition to inflict no punishment at all. There are, however, still a few old-fashioned persons who hold it obvious that one who is ambitious to break the laws of his country will not with as light a heart and as airy an indifference incur the peril of a harsh penalty as he will the chance of one more nearly resembling that which he would select for himself.

 

III.

After lying for more than a century dead I was revived, given a new body, and restored to society. This was in the year 2015. The first thing of interest that I observed was an enormous building, covering a square mile of ground. It was surrounded on all sides by a high, strong wall of hewn stone upon which armed sentinels paced to and fro. In one face of the wall was a single gate of massive iron, strongly guarded. While admiring the cyclopean architecture of the "reverend pile" I was accosted by a man in uniform, evidently The Warden, with a cheerful salutation.

"Colonel," I said, pressing his hand, "it gives me pleasure to find some one that I can believe. Pray tell me what is this building."

"That," said the colonel, "is the new State penitentiary. It is one of twelve, all alike."

"You surprise me," I replied. "Surely the criminal element must have increased enormously."

"Yes, indeed," he assented; "under the Reform _regime_, which began in your day, it became so powerful, bold and fierce that arrests were no longer possible and the prisons then in existence were soon overcrowded. The State was compelled to erect others of greater capacity."

"But, Colonel," I protested, "if the criminals were too bold and powerful to be taken into custody, of what use are the prisons! And how are they crowded?"

He fixed upon me a look that I could not fail to interpret as expressing a doubt of my sanity. "What?" he said, "is it possible that the modern Penology is unknown to you? Do you suppose we practise the antiquated and ineffective method of shutting up the rascals? Sir, the growth of the criminal element has, as I said, compelled the erection of more and larger prisons. We have enough to hold comfortably all the honest men and women of the State. Within these protecting walls they carry on all the necessary vocations of life excepting commerce. That is necessarily in the hands of the rogues as before."

"Venerated representative of Reform," I exclaimed, wringing his hand with effusion, "you are Knowledge, you are History, you are the Higher Education! We must talk further. Come, let us enter this benign edifice; you shall show me your dominion and instruct me in the rules. You shall propose me as an inmate."

I walked rapidly to the gate. When challenged by the sentinel, I turned to summon my instructor. He was nowhere visible: desolate and forbidding, as about the broken statue of Ozymandias,

"The lone and level sands stretched far away."

[The end]
Ambrose Bierce's essay: The Death Penalty

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