A friend of mine has just been made a High Court judge. Among the majestic paraphernalia that he has had to acquire—the scarlet robes, the wigs full-bottomed and otherwise, the pressed white gloves, the satin gaiters, the silver buckles and so forth—is a square of black silk, the Black Cap, that the court usher places on top of his wig before he pronounces the death penalty: or rather, would have had to place on top of his wig had the death penalty not been abolished in England thirty-eight years ago.

If representative government were merely a matter of reflecting the population’s wishes, the death penalty in Britain would never have been abolished and would be re-instituted forthwith.

It seems that the judges’ kit-list has fallen a little behind legal reality, whether through nostalgia for a better past, or in the faint hope of restoration, or through the slight inertia that preserves us (or used to preserve us) from ill-judged and over-hasty innovation, it is not for me to say. I do not think my friend would have cared much in any case to pronounce in public those magniloquent dread words—The sentence of the Court is that you be taken hence to a lawful prison, and that you be there hanged by the neck until you are dead; and that your body be buried within the precincts of the prison in which you shall have been confined after your conviction; and may the Lord have mercy on your soul!—the utterance of which is said by his many detractors to have given one of the last great hanging judges of England, Lord Chief Justice Goddard, a pleasure that was almost sexual.

I suspect that it would now be very difficult to restore the death penalty in England, not for legal reasons (Parliament can do whatever it likes), but for practical ones: while willing hangmen—or should they be called hangpersons?—could no doubt be found, in quite large numbers too, among the population, the willing doctors, prison governors, and chaplains who have always been essential to properly conducted executions probably could not be so found.

Scott Turow, the lawyer, thriller writer, and erstwhile member of Governor George Ryan’s Commission in Illinois on the law relating to capital punishment, as well as the author of Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty,¹ sees in the European revulsion against capital punishment, and in Europe’s assumption of moral superiority vis-à-vis the United States in this respect, a sign of the historically inferior level of legitimacy of European governments compared with that of the United States.

I am one of those who tend to find Western European criticisms of [American] capital punishment somewhat misplaced. Despite Western Europeans’ frequent self-congratulation on their civility, it is, in fact, their democracies that have been repeatedly overwhelmed by dictators. Where democracy has proven fragile, the day seems far less remote when another madman can commandeer the power of the state to kill his enemies . . . we must bear in mind that American opinion about capital punishment is subtly dependent on the extraordinary stability of our democratic institutions.

Mr. Turow is certainly right about Western European smugness, examples of which are not difficult to find. The Benetton advertising campaign, which used the faces of American prisoners on death row, was one such. The introduction to a new British edition of Victor Hugo’s abolitionist novella, The Last Day of a Condemened Man, first published in 1827, says that the book “breathes a powerful, angry message to the age of the electric chair and the lethal injection in the US, and the Taliban’s executions on the football ground of Kabul.” I don’t suppose the offensiveness of this particular juxtaposition needs to be pointed out. And in a recently published French book, La peine de mort aux Etats-Unis, we read:

It suffices to listen to what is said in Europe, what is seen on its television screens, what is read in is newspapers, especially in France, to realise that among the most serious accusations made against American society is the existence of the death penalty.

As it happens, though, France was the last country in Western Europe to abolish the death penalty, in 1981, which is hardly several historical epochs ago. Moreover, a considerable proportion of the French population still supports the death penalty, as does the British. In fact, if representative government were merely a matter of reflecting the population’s wishes, the death penalty in Britain would never have been abolished and would be re-instituted forthwith. Contrary to what Turow says, public opinion in Europe is not so very different from that in America. The real difference is in elite opinion. In Europe, the death penalty has almost no defenders among intellectuals, whereas in America it still has many. There has been a kind of moral gestalt switch in Europe, of the kind that took place in the United States immediately after desegregation. Immediately after its abandonment, a deeply entrenched customary practice appeared so morally reprehensible that its intellectual and emotional defenders fell silent and a return to it therefore became an impossibility.

Mr. Turow is the latest in a long line of authors to tackle the subject of capital punishment. Very few have ever had a good word to say for it, the most notable exception being Dr. Johnson, who thought that executions should be public or they would fail in their deterrent effect. In general, one does not gain a public reputation for compassion by ardent recommendation of the ax, the garrotte, the firing squad, the rope, the electric chair, or even the pleasantly fatal injection. Mr. Turow is unusual, therefore, in that he does not appear to have made up his mind about capital punishment before he wrote. Having been a state prosecutor for a short time, he was aware that some crimes are so horrible and some men so wicked that death seems the only just desert for them, and that special pleading is required to free the mind of this natural response; as a lawyer working pro bono in cases of miscarriages of justice, however, he was aware of the fallibility of the judicial system (all judicial systems), and that the wrong men have been executed not just on rare occasions, but with monotonous regularity.

Gone are the days, if they ever existed, when the person hanged for a crime he did not commit could console himself (at least in the opinion of the Archdeacon William Paley, DD, he of Natural Theology [1802] and the comparison of the universe with a watch) that he died for his country. This is a form of patriotism that has not really caught on. To the contrary, the execution of the wrong man is not only a monstrous injustice in itself, but it also brings the law into precisely that kind of disrepute that serves future criminals in their self-justification.

Mr. Turow’s unpolemical tone is most unusual in writing about capital punishment. Only rarely does he succumb to conventional modern pieties, for example writing on page 13 that criminals “do not think much of themselves and they are inclined, as a result, to treat others cruelly.” This is a genuflection in the direction of the ghastly, shallow modern theory of the origin of suffering and evil, from anorexia to Auschwitz, that it is all caused by a lack of self-esteem, of people not loving themselves enough. In fact, only those already hopelessly mired in the horrible morass of egotistic solipsism can even ponder the question of whether they like themselves, whatever answer they give.

Mr. Turow also accepts uncritically the orthodox opinion that racism is to America what original sin is to the whole of mankind, namely an ineradicable stain that no official policy or change in personal conduct can wash away. Thus when to his surprise the commission on which he sat found that white murderers were two and a half times more likely to have the death penalty applied to them in Illinois than black murderers, he comes up with an interpretation that preserves intact the state’s original sin, and thus his own rectitude. Since white murderers murder mostly whites, and black murderers mainly blacks, the Illinois criminal justice system values a white life at two and a half times a black life. One hesitates to imagine what he would have written if the figures had been the other way round.

In recounting a case of a murder which, in the author’s opinion, should self-evidently not be punished by the death penalty, and in which the culprit said “sorry” to the bereaved after his conviction, Mr. Turow writes that it was “a parking lot stickup gone bad.” What, then, is a parking lot stickup that goes well? One in which the law-abiding citizen is relieved of his property but is uninjured? Or one in which, though injured, he survives to tell the tale? Many of the inmates of the prison in which I work, when asked what they have done, reply, “Just a normal theft,” or a normal burglary, robbery, or assault. If this is how even our former state prosecutors think of such crimes, no wonder that so many of them are committed.

Nevertheless, Ultimate Punishment is a genuine effort of personal clarification, understanding, and discovery. That is its strength: it is rarely that one reads a book of real inquiry on a subject about which most people feel passionately. But Mr. Turow does not organize his materials very coherently (an odd shortcoming in a trial lawyer), and he is by no means an accomplished writer. One has only to compare him with writers on the subject in the past to appreciate the thinness of his book, not literally but metaphorically.

Charles Dickens, for example, wrote three letters for publication on capital punishment in 1846, when he was thirty-four years old. Executions at the time were public affairs that drew huge crowds (as they would today, if they were permitted, and as they do in those countries where they take place). Dickens was vehemently opposed to capital punishment and was a brilliant polemicist. He knew a startling fact when he saw it.

Out of one hundred and sixty-seven persons under sentence of Death in England, questioned at different times, in the course of years, by an English clergyman in the performance of his duty, there were only three who had not been spectators of executions.

Dickens does not leave the question of deterrence there, however. He quotes figures to show that the frequency with which the death penalty is carried out does not have the effect on the murder rate that its supporters expect. He speculates brilliantly on the psychological reasons why this is not so, in the process refuting the criticism often made of him that he was a shallow or superficial psychologist.

We come, now, to the consideration of those murders which are committed, or attempted, with no other object than the attainment of an infamous notoriety. That this class of crimes has its origin in the Punishment of Death, we cannot question; because . . . great notoriety and interest attach, and are generally understood to attach, only to those criminals who are in danger of being executed.

He then describes, as only Dickens could describe, the case of one Thomas Hocker, a young man who has committed a murder:

Bent on loftier flights than such a poor houseswallow as a teacher in a Sunday-school can take; and having no truth, industry, perseverance, or other dull work-a-day quality, to plume his wings withal; he casts about him in a jaunty way, for some mode of distinguishing himself—some means of getting that head of hair into the print-shops; of having something like justice done to his singing-voice and fine intellect; of making the life and adventures of Thomas Hocker remarkable; and of getting up some excitement in connection with that slighted piece of biography. The Stage? No. Not feasible. There has always been a conspiracy against the Thomas Hockers, in that kind of effort. It has been the same with Authorship in prose and poetry. Is there nothing else? A Murder, now, that would make a noise in the papers! There is the gallows to be sure; but without that, it would be nothing. Short of that, it wouldn’t be fame. Well! We must all die at one time or other; and to die game, and have it in print, is just the thing for a man of spirit.

“The miserable wretch,” says Dickens, “inflated by this lunatic conceit, arranges his whole plan for publication and effect. It is quite an epitome of his experience of the domestic melodrama or penny novel. . . . [T]he Court, where Thomas Hocker, with his dancing-master airs, is put upon his trial, and complimented by the Judge; the Prosecution, the Defence, the Verdict, the Black Cap, the Sentence—each of them a line in any Playbill, and how bold a line in Thomas Hocker’s life!” He continues:

It is worthy of remark, that the nearer he approaches to the Gallows—the great last scene to which the whole of these effects have been working up—the more the overweening conceit of the poor wretch shows itself, the more he feels that he is the hero of the hour; the more audaciously and recklessly he lies, in supporting the character. . . .He knows that the eyes in Europe are upon him; but he is not proud—only graceful. He bows, like the first gentleman of Europe, to the turnkey who brings him a glass of water. . . . In private—within the walls of the condemned cell—every word and action of his waning life, is a lie. His whole time is divided between telling lies and writing them. If he ever have another thought, it is for his genteel appearance on the scaffold; as when he begs the barber “not to cut his hair too short, or they won’t know him when he comes out.” His last proceeding but one is to write two romantic love letters to women who have no existence. His last proceeding (but less characteristic, though the only true one) is to swoon away, miserably, in the arms of the attendants, and be hanged like a craven dog.

Dickens is reminding us of the incalculability, and frequent frivolity, of human motivation, which perhaps explains why the direst of penalties does not exert the effect upon the conduct of a class of susceptible persons (and murder is always an infrequent crime, even in countries such as the United States, where it is more frequent than in others) that the person who thinks of man as a being that rationally weighs up alternatives expects. And how right Dickens was: I have myself dealt with the man who consciously and strenuously attempts to be the worst, most difficult, and dangerous prisoner in the country because, while mildly intelligent, he has no truth or industry in him, yet desires (how strongly!) to make his mark and appear in the newspapers, which he does with regularity, even if it is all to the obvious detriment of his own quality of life. The most notorious and sadistic killers are immediately besieged by declarations of love and offers of marriage, which are never forthcoming for recidivist petty criminals: it is notoriety and wickedness that awake passion, as the flame attracts the moth. I have known men boast of their infection with the AIDS virus as a means, and a highly successful means, of attracting women; I have known people deliberately to inject themselves with the blood of sufferers from AIDS.

Considering that only a very small proportion of murderers are ever executed, it is astonishing how many judicial errors have been made, in Britain as in America, and no doubt elsewhere. This was a point made by Arthur Koestler in his brilliant polemic published in 1956, Reflections on Hanging. Koestler knew himself what it was to be under sentence of death; perhaps that is why at the start of his book he says, “I shall never achieve real peace of mind until hanging is abolished.” Cynics might suspect that what he really feared was that his serial abuse of women (up to and including rape) might one day end in murder and that he would find himself at the wrong end of a rope in the land that gave him refuge, but I leave it to moral philosophers to decide how much a man’s actual conduct refutes his humanitarian sentiments. Incidentally, Victor Hugo, in his preface to The Last Day of a Condemned Man, reports what to me sounds like a suspiciously exaggerated state of moral exaltation with regard to the death penalty. On the day of an execution, “it was like a torment that began at daybreak” and only after he had written his book had his “conscience . . . declared him innocent of complicity.” Is this humbug, or are there people—very different from me—who genuinely live at this high moral temperature?

Whatever the answer, the fact is that on reading Koestler, you realize what a very mediocre writer Turow is, which is all the more startling because Koestler is writing in his fourth language, while Turow writes in his first. Koestler can make you laugh, as for example when he quotes the remark made by the Under-Sheriff of the County of London, who had attended many executions, to the Royal Commission on Capital Punishment, that “I personally have noticed that English people take their punishment better than foreigners.” Koestler says, “There you are. Hanging is quite all right for Englishmen; they actually seem to like it; it is only foreigners who cause trouble.”

Kill 500 wrongly to save 800?

Like Dickens, Koestler knows how to use historical examples to an effect that is quite beyond Turow’s range or ability. He quotes the speech that a man, Walter Graham Rowland, wrongly condemned for having allegedly murdered a prostitute, made to the court. This speech is all the more startling in its dignity because Rowland was a well-known criminal, who had served a sentence both for attempted murder and a murder itself. When asked by the judge if he had anything to say, he replied:

“Yes, I have, my Lord. I have never been a religious man, but as I have sat in this court during these last few hours the teachings of my boyhood have come back to me, and I say in all sincerity and before you and this court that when I stand in the Court of Courts before the Judge of Judges I shall be acquitted of this crime. Somewhere there is a person who knows that I stand here today an innocent man. The killing of this woman was a terrible crime, but there is a worse crime being committed here today, my Lord, because someone with the knowledge of this crime is seeing me sentenced today for a crime which I did not commit. I have a firm belief that one day it will be proved in God’s own time that I am totally innocent of this charge, and the day will come when this case will be quoted in the courts of this country to show what can happen to a man in a case of mistaken identity. I am going to face what lies before me with the fortitude and calm that only a clear conscience can give. That is all I have got to say, my Lord.”

In fact, six days later, someone came forward and confessed to the crime of which Rowland was convicted. But he was hanged nonetheless, on the extraordinary grounds that not to have done so would have prejudiced any case against the man who confessed, by implying that he was guilty. Mr. Turow quotes a not dissimilar case, but, because he is so much the lesser writer than Koestler, it has far less impact upon the reader.

Neither does Mr. Turow make use of an entire genre of writing about capital punishment, the execution scene itself. Perhaps he feels, as a fastidious rationalist, that this would be a low blow. But to force people to confront the actual consequences of the policies they advocate is surely a justified rhetorical maneuver.

Victor Hugo did it imaginatively in his novella, with brilliant effect. A first-person narrative of the last days and hours (right up to the guillotine) of a condemned man, this fictional account was echoed to an astonishing extent by Turgenev’s documentary narrative The Execution of Tropmann, written forty-two years later.

Turgenev, a man of the most delicate feeling, was invited to be present at the public execution of Tropmann, a young man who had slaughtered an entire peasant family. Turgenev watched Tropmann being prepared for his execution, exactly as it occurred in Hugo’s novella. He went out with him from the prison gate to the place of execution:

Tropmann minced along nimbly—his shackles interfered with his walk—and how small he suddenly appeared to me, almost a child! Suddenly the two halves of the gates, like some immense mouth of an animal, opened slowly before us—and all at once, as though to the accompaniment of the great roar of the overjoyed crowd which had at last caught sight of what it had been waiting for, the monster of the guillotine stared at us with its two narrow black beams and its suspended axe. I saw the executioner rise suddenly like a black tower on the left side of the guillotine platform; I saw Tropmann scrambling up the steps. I saw two men appear above and two men pouncing on him from the right and left, like spiders on a fly; I saw him falling forward suddenly and his heels kicking.

Turgenev felt faint and turned away, but he

managed to notice that the roar of the crowd seemed suddenly to roll up in a ball and—a breathless hush fell over everything. At last I heard a light knocking of wood on wood—that was the sound made by the top part of the yoke with the slit for the passage of the knife as it fell round the murderer’s head and kept it immobile. Then something suddenly descended with a hollow growl and stopped with an abrupt thud.

Turgenev went back into the prison, where he learned that “Tropmann [had] suddenly thrown his head sideways convulsively so that it did not fit into the semi-circular hole. The executioners were forced to drag it there by the hair, and while they were doing it, Tropmann bit the finger of one of them.” Turgenev discovered that immediately after the execution “two men took advantage of the first moments of unavoidable confusion to force their way through the lines of soldiers, and crawling under the guillotine, began wetting their handkerchiefs in the blood that dripped through the chinks of the planks.”

Turgenev says—and surely he is reporting the truth—that “not one of us, absolutely no one looked like a man who realized that he had been present at the performance of an act of social justice; everyone tried to turn away in spirit and, as it were, shake off the responsibility for this murder.” Dostoyevsky, certainly the most famous writer ever to have to have been reprieved a death sentence, despised Turgenev’s fastidious refusal to observe the beheading itself, and wrote, “What is so comic is that at the end he turns away and does not see the last stages of the execution: ‘Look, ladies and gentlemen, how nicely I have been brought up! I could not stand it!’” But this is pure spite, born of envy of Turgenev’s superior social origins: for Dostoyevsky so loved and admired Hugo’s book that he knew it practically by heart, and must have realized how closely Turgenev’s observations bore out Hugo’s imaginings.

George Orwell observed a hanging in Burma, and published his account in 1931. He does not tell us what the accused had done.

The warders had formed a rough circle round the gallows. And then, when the noose was fixed, the prisoner began crying out to his god. It was a high, reiterated cry of “Ram! Ram! Ram! Ram!” not urgent and fearful like a prayer or a cry for help, but steady, rhythmical, almost like the tolling of a bell. The hangman, still standing on the gallows, produced a small cotton bag like a flour sack and drew it down over the prisoner’s face. But the sound, muffled by the cloth, still persisted, over and over again: “Ram! Ram! Ram! Ram! Ram!”

The hangman climbed down and stood ready, holding the lever. Minutes seemed to pass. The steady, muffled crying from the prisoner went on and on. “Ram! Ram! Ram!” never faltering for an instant. The superintendent, his head on his chest, was slowly poking the ground with his stick; perhaps he was counting the cries, allowing the prisoner a fixed number—fifty, perhaps, or a hundred. The Indians had gone grey like bad coffee, and one or two of the bayonets were wavering. We looked at the lashed, hooded man on the drop, and listened to his cries—each cry another second of life; the same thought was in all our minds: oh, kill him quickly, get it over, stop that abominable noise!

Suddenly the superintendent made up his mind. Throwing up his head he made a swift motion with his stick. “Chalo!” he shouted almost fiercely. There was a clanking noise, and then dead silence. The Prisoner had vanished, and the rope was twisting on itself.

Somerset Maugham witnessed an execution in China:

The rice fields began at the city wall. The criminal was led to the pathway between two patches and told to kneel down. But the officer did not think the spot suitable. He told the man to rise. He walked a yard or two and knelt down again. A soldier was detached from the squad and took up his position behind the prisoner, three feet from him perhaps; he raised his gun; the officer gave the word of command; he fired. The criminal fell forward and he moved a little, convulsively. The officer went up to him, and seeing he was not quite dead emptied two barrels of his revolver into the body.

The vice-consul was carried back towards the consulate. But just as he reached the consulate he looked at his watch, he had no idea it was so late. It was time for a cocktail and by heaven he could do with one.

“Everything go off all right?”[they asked].

“He wriggled a bit.” He turned to the bartender. “Same as usual, John.”

Although Mr. Turow, with admirable honesty, comes tentatively to the conclusion that capital punishment is wrong, so tentatively as if he feared to offend some of his best friends, his book adds little to what has already been written on the subject.

I suppose that the best argument in favor of capital punishment is that, on the one hand, of the 52,000 prisoners in American convicted for homicide, about 800 have killed again. If the 52,000 had been executed—straight away, not after the many years it now takes for the sentence to be carried out—those 800 would still have been alive. On the other hand, perhaps 500 would have been wrongly executed, if the figures from Illinois are anything to go by. Kill 500 wrongly to save 800? And what of Ivan’s question in The Brothers Karamazov, that if it were possible to create human happiness at the cost of the torture of one innocent child, would it be morally permissible?

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1.   Ultimate Punishment: A Lawyer