How would a visitor from a century ago judge the capital trials of the modern era?
Moral Preening and Capital Punishment
A feeling of moral superiority is often compensation for the lack of any other kind of superiority, and has the advantage that it can never be decisively disproved. With respect to capital punishment, Europeans feel morally superior to Americans because they have abolished it as a relic of judicial barbarism. So complete has been the revolution in moral sensibility that they speak as if the French foreswore the guillotine before the Roman invasion rather than in 1981, against the majority opinion of the public.
The question of capital punishment has long agitated the minds of intellectuals, and recently I had the good fortune to find and buy The Punishment of Death by Henry Romilly, published in 1886, an anti-capital punishment tract. Romilly was the son of the lawyer and politician, Sir Samuel Romilly, one of the early abolitionists; Henry is therefore a case of hereditary abolitionism. He is not, of course, to be despised on that account.
Some of his arguments seem distinctly odd. For example, he says that the frequent reports of the repentance of the murderer on the scaffold, and of his dignified conduct thereon, create a sympathy for him that would tend to lessen the public abhorrence of his crime and therefore decrease the general inhibitions against committing like crimes. This is distinctly far-fetched.
Romilly denies that the death penalty is a deterrent to murder because, at the moment of killing, the murderer is usually in such a state of passion that nothing can enter his mind to prevent him from committing the act. He does not say to himself ‘I might swing for this,’ and desist; he realizes it, usually to his chagrin, only after the event.
Recently, I stumbled across evidence that showed that this was wrong, that the death penalty probably does deter murder. I had read a book called Murder Followed by Suicide, by the distinguished doctor and criminologist, D J West, which was published in 1965, the very year of the abolition of the death penalty in Britain.
For several decades before the date of publication, a third of all homicides in the country had been followed by the suicide of the perpetrator. In the great majority of these cases, the perpetrator was mad, and actually would not have been found guilty (because of his or her insanity) had he or she lived to face trial. The title of the book, then, while dramatic, was slightly inaccurate. It should have been Homicide Followed by Suicide, but that does not have quite the same ring to it.
The suicide who had just killed was likely to be suffering from delusions, for example that by killing his wife and children he was sparing them something far worse at the hands of the conspirators who were persecuting him. While most killers are men, a much higher proportion of mad killers were women.
It occurred to me that nothing on earth would deter these mad killers from their course of action: they were like Romilly’s killers in the grip of an ungovernable passion. So the death penalty would not deter them; but if, I hypothesized, it exerted a deterrent effect upon other potential killers, what one would see after the abolition of the death penalty was a rise in the total number of homicides, but a reduction in the proportion of them followed by suicide.
And this is precisely what happened. Thanks to researches by my friend, the criminologist David Fraser, I learnt that, while the general homicide rate increased after 1965, the proportion of homicides followed by suicide fell, from a third – stable for many years before the abolition – to about one fourteenth. Moreover, the absolute number of homicides followed by suicide, while showing a tendency to fall (perhaps because of the earlier and more effective treatment of the psychotic), remained rather similar
At the very least, these facts were compatible with the deterrent effect of capital punishment. No doubt other interpretations of them were possible, but the most natural interpretation seemed to be that the possibility of being hanged – never more than a possibility, since no more than a eighth of murderers were ever executed – concentrated the minds of the violent
Does this, then, settle the question of capital punishment? The answer is obviously ‘No.’ The effectiveness of a punishment is not sufficient to justify it. We are horrified by the amputation of thieves’ hands not because it is ineffective, or even because it is unjust, but because it is barbaric. The relationship between facts and policy is more complex than is sometimes believed.
It seems to me that the decisive argument against the death penalty is that, even in the most scrupulous jurisdictions, mistakes are made: and for the state to put to death an innocent man is a terrible thing, one that is likely in the end to undermine its legitimacy in the eyes of many. A supporter of the death penalty to whom I put this point retorted immediately that it was easy to refute it, because it could be shown that murderers repeated their murders more often than the wrong man was executed, therefore the balance was in favor of the death penalty. I replied that this seemed to me more a refutation of utilitarianism than an argument in favor of the death penalty, but as with most such discussions, no final agreement was reached between us.
As with so many questions, those on one side are more at pains to refute the arguments of those on the other than to find the truth. This is partly for reasons of vanity, as Schopenhauer would no doubt say; but there is something else besides. We find it difficult and disturbing to hold in our minds arguments of the form ‘On the one hand, on the other.’ If we are for capital punishment we want it to be good in all respects, with no serious drawbacks; if we are against it, we want it to be bad in all respects, with no serious advantages. We want the world of facts to dictate to us, virtually, how to act; but this it will never do. We always have to make a choice.