6.

Some Thoughts on the Origins and Abolition of the Death Penalty

It was a child who first sought to abolish capital punishment in the West.

Pietro Leopoldo was Grand Duke of Tuscany between 1765 and 1790, and then became the emperor of Austria in his last two years. Modern scholars call the penal code he established the Codice Leopoldino, or Leopoldina. While it may be seen as a child of previous codes, it establishes many new interpretations. On November 30, 1786, in Florence, the city of Dante, Leonardo da Vinci, and Michelangelo, the death penalty was abolished and torture was outlawed for the first time.

To get here—to Archbishop Desmond Tutu saying “to take a life when a life has been lost is revenge, not justice,” and to Pope Benedict XVI welcoming the ministers of justice attending the “No Justice Without Life” conference to a private audience and urging them “to do all that is possible to abolish the death penalty”—has taken longer than twenty centuries. Why?

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Reaching back some 3,500 years before the Leopoldina, the Code of Hammurabi, from the eighteenth century BC, provides some answers. It was the first document codifying the death penalty. In it, capital punishment is prescribed as the punishment for twenty-five different crimes—not only for homicides but also for crimes against property. In other words, it codifies the idea that the punishment can properly exceed the crime. The punishment was widely disproportionate—to kill someone, for example, as punishment for the crime of theft—but at least for the first time an attempt had been made to implement an orderly system of rules, with legal sanctions to punish crime.

In ancient Athens, Draco introduced severe punishments for different crimes, an approach that gave rise to the word “draconian,” and that in our own times might be called “zero tolerance.” The settling of personal quarrels and family feuds generally involved murder or the threat of murder. When Solon published new laws, Draco’s homicide statutes were kept as valid.

The ancient Roman legal system is the basis for the legal systems of all Western countries, and for the West’s application of the death penalty in particular. The Roman Code, devised largely by Salvius Iulianus and, later on, deeply influenced by Gaius in the second century AD, came about six hundred years after the so-called Twelve Tables (450 BC), which codified crimes and punishments in writing so as to prevent abuses by the patricians and aristocrats, who might otherwise use criminal accusations to suppress revolts by the citizenry.

Public treason was the crime that most especially was punished by death, but a host of more private crimes could lead to death, too. Crimes against property, fraud in changing the borders of one’s land, lying, cheating a client, stealing during the night, infringing a promise, or violating a woman—all these could be punished by death.

It’s worth taking a few sentences to list all the different ways the death sentences were carried out in “the old days,” since people in modern times have hardly altered them. Beheading, drowning, cutting off the condemned person’s limbs; putting the victim in a bag and dumping the bag in a body of water, sometimes including snakes or bees in the bag; hanging, flogging, burying alive (in the case of the Vestals, whose blood could not be dispersed), or throwing the convict from a high place (as was often done to slaves who had stolen from their masters), impalement, and, for non-Romans, crucifixion (as in the case of the Revolt of Spartacus).

The Pentateuch, the first five books of the Hebrew Bible, maintains that the death penalty is to be inflicted in the case of murder, violation of the Sabbath, blasphemy, and a wide range of sexual crimes, in addition to magic rites. Although actual executions were very rare, because of the difficulty of producing eyewitnesses to the act of adultery, the death penalty was a natural part of the society that produced the Bible. But it is possible to trace the practice’s evolutionary development from immeasurable revenge (“seventy times seven”) to proportional punishment (“an eye for an eye, a tooth for a tooth”), to a way of thinking (found in the Book of Job) that entrusts the power over human life to God alone, not to human society or worldly justice. The New Testament goes further, and indicates the path to ending violence is the path of forgiveness in every circumstance, even in the face of a wrong inflicted; central to this path is the rejection of death as a punishment, as made emphatic by the execution of Jesus, who was sentenced to die by the vast and imperfect justice system of the Roman Empire but whose crucifixion accomplished absolutely nothing in a worldly sense, only in a spiritual one.

Early Christians were persecuted by the Roman Empire for their beliefs. For example, in the third and fourth centuries, a wave of repression, forced conversion, and violence called the Diocletianic Persecution swept across the Roman Empire, leading to the arrest, torture, and murder of much of the church hierarchy. These executions were sometimes made into public spectacles, with Christians being tied to posts and fed to lions in the arena. Emperor Julian the Apostate declared Christians “bad citizens,” ineligible for military service on account of their non-violent attitude. But with the ascension to the throne of Emperor Constantine later that century, there came a ruling that it was unlawful to execute Christians, much less to use them in public spectacles or let them be slaughtered by the lions.

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Although it is true that in Islam capital punishment has been accepted from the beginning and has during certain historical periods been popular, it is also true that the tradition of turning away from capital punishment has its own long tradition. While the Caliphs in Baghdad during the Abbasid period implemented terrible punishments, Islamic nations on the whole have preferred mercy to killing, and sharia law entertains the possibility of private settlement between a murderer and the family of a victim, allowing them an opportunity to spare the killer’s life, with or without financial compensation.

In China, capital punishment was common from the tenth century to the beginning of the twentieth, and a common form of execution during much of that time was the lingchi, or slow slicing—“death by a thousand cuts.” But capital punishment was banned between 747 and 759, the time of the Tang dynasty, at the behest of Emperor Xuanzong. Criminals sentenced to death were now scourged with a rod or exiled to the Lingnan (the end of the world) instead—something close to the Greek idea of “ostracism,” the banning an individual from return to country and society. This change in policy did not last long, however. When the Lushan Rebellion rose up and threatened the unity of the empire, the death penalty was re-introduced. It was used rarely, however—only a few dozen times during Xuanzong’s reign, which lasted for forty-four years.

In Japan capital punishment was abolished by Emperor Shomo, briefly, in the eighth century, and then as soon again as 818, by Emperor Saga, under the influence of Chinese culture and Buddhist schools. This time, the ban lasted for more than three centuries, until 1156. Just a little later, in Italy, St. Thomas Aquinas supported the doctrine of the need to accept a “minor evil” to gain a “major good.” It was centuries after St. Augustine had defined the concept of “just war.”

In Europe, the most significant statement against the death penalty came nearly three centuries later, in the Twelve Conclusions of the Lollards, a manifesto written by followers of John Wycliffe and posted on the doors of St. Paul’s Cathedral and Westminster Abbey (the message boards of the time).

In the eighteenth century, Voltaire made a utilitarian case against the death penalty, arguing that it was useless because it produced no “profit” to society. A generation later, Jeremy Bentham also saw capital punishment as a net negative, since it reduced the plenitude one of society’s main sources of wealth—namely, human beings.

Earlier, Thomas Hobbes’s approach had been to somehow create an exception to the idea of the social contract only for the death penalty. In society, Hobbes saw individuals acting on the basis of a natural instinct to make a contract to create the maximum advantage for each individual and for all together. But capital punishment did not fit this scheme—because how can the person sentenced to death reckon it an advantage to be killed? So Hobbes made an exception to his own contractualist philosophy and justified capital punishment as a legitimate form of retribution on other grounds. According to David Heyd, a scholar in ethics and bioethics at the Hebrew University of Jerusalem, this is due to Hobbes’s tendency to see human nature as fixed and inclined towards bad behavior.

The nineteenth-century Italian anthropologist Cesare Lombroso, the founder of positivist criminology and author of L’Uomo Delinquente, or Criminal Man, also saw some humans as genetically inclined towards evil, and thus accepted capital punishment as a natural solution. He also thought he had demonstrated once and forever a connection between physical defects and wild or savage behavior. This was only a few decades before the “new scientists” in Germany would develop theories of Jewish behavior based on physical traits such as curly hair, sharp cheekbones, and long noses.

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The founders of the US (like the leaders of the new independent countries of Africa two centuries later) adopted the criminal codes of their former rulers, Great Britain. As early as 1612 in the American colonies, killing chickens owned by others, stealing grapes owned by others, and trading with Indians were all crimes punishable by death. Somehow the European Enlightenment arrived in America without the initial energy and imagination that in Europe had led to innovative approaches to the death penalty. Strangely, the Enlightenment had led to the abolition of the death penalty in Tuscany, and also, for a short time, in Catherine the Great’s Russia, but not in America.

Surely John Calvin, the spiritual inspiration of many of the first European inhabitants of New England, was not so extreme to suppose that some people were “predestined to die” at the hands of the state. Nevertheless, his influence is recognizable in the process that led the civil authorities to place the responsibility for poverty and for crimes arising from poverty squarely on the people who committed them, without any mitigating factors. In England, crimes against property were punished relatively mildly, while punishment for “immoral” crimes such as rape were published harshly. In any case, at the end of the nineteenth century in America there were 220 crimes punishable by death through the “bloody code.”

The “bloody code” first appeared as the criminal justice model in pre-modern England. Somehow, the judge had to define the perfect candidates for exemplary executions, choosing from among the many people who had committed the same crime and who, according to the law, were deserving of the ultimate punishment—choosing those who could best become deterring examples. As Norma Landau of the University of California writes early in her monumental study Law, Crime, and English Society, 1660–1830, the main goal of the English trial and judicial system was “deterrence.” The idea was that most defendants would receive detention as a minimum punishment, while a few “exemplary” criminals would be executed as a deterrent. But a strange thing happened: more criminals received the death penalty than ever before, and executions became free public events attended for amusement by thousands of onlookers.

In America’s antebellum South, another level of crimes was created—crimes by enslaved blacks against whites—and a list of punishments was created to deal with them. A “bloody code” was elaborated for crimes committed by slaves and other blacks, one without any counterpart in the “white justice” system of the time.

The US Bill of Rights, influenced by the writings of Italian philosopher Cesare Beccaria and ratified in 1791, had served to limit death sentences by prohibiting the state’s use of “cruel and unusual punishment” in its Eighth Amendment. Some scholars today argue the term “cruel and unusual punishment” was a standard verbal formula, understood differently by the framers than it might be today. Nevertheless it was a formula that started to limit the use of the death penalty to the harshest cases—presaging, perhaps, language in the Constitution of India, drafted much later, that says that death sentences must be contemplated “in the rarest of the rarest cases.” Yes, what is “cruel and unusual punishment” is under dispute, but this reflects the fact that times are changing, and with them the standards of decency considered acceptable by the different communities and—now—by the western and globalized world.

The brutalities of slavery brought with them a renewed interest in capital punishment, which led in turn to still more brutalities. They also stimulated the abolition movement in the United States, which in the middle of the nineteenth century became one of the most powerful social movements America had ever seen. Cesare Beccaria, to whom we owe the beginning of the abolitionist process in the Western world, observed how “the last entreaty never dissuaded the men determined to wipe out the blight of offences to society.” In his Dei Delitti e delle Pene (On Crimes and Punishments) he went even further. He asserted that the certainty of a conviction is a more effective deterrent than the seriousness of the penalty. In a text published in 1776, he declared that, because of the social contract, no citizen can yield the right to dispose of his personal life, concluding that “the death penalty is not a right, but a war of an entire nation, which deems necessary the destruction of a human being, against a single individual. This does not enhance society.”

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America’s current approach to capital punishment carries within it all the different threads of its past: The British penal code, the harshness of Calvinism, the brutalities of slavery, and a shining history of successful social movements that includes the abolition movement as well as the pacifist, worker’s rights, and civil rights movements. So the story in America is not a simple one. There is remarkable change and there have been major steps taken in America to overcome our addiction to the death penalty. And at the same time, America is far behind other countries on this important journey.

Today in America, the argument to justify the death penalty as a form of deterrence, or as a form of retributive justice, is often set against the utilitarian argument that a judicial system based on the death penalty costs more than it is worth. And it is true that the costs of administering the death penalty are truly appalling. It is surreal to think that in California there are 745 death row inmates and that the state Supreme Court of California devotes fully one-third of its work to capital cases, even though the “productivity” of the system (if it can be called that) is as low as one execution every three years. Appalling and surreal. But in the last quarter of the twentieth century social attitudes toward the death penalty began to change dramatically.

In the 1970s, the number of abolitionist countries in Europe started to grow, partly as a result of efforts there by Amnesty International, and informed also by the memory of the senseless killings of two world wars, as though Europe were finally proclaiming, “Enough with death!” after the millions of killings on their soil. Outside Europe—with some exceptions—economic growth and the demise of some authoritarian regimes, as well as globalization, encouraged opposition to the death penalty. In the United States, meanwhile, the Supreme Court, after a short pause in executions, once again gave the green light to capital punishment in 1976. When executions resumed, Texas emerged at the forefront: since the resumption, Texas alone has progressively accounted for about 30 to 50 percent all the executions in the US (even though California has the larger death row), with lethal injection being the principal method, thanks to the claim that it’s painless and so avoids “cruel and unusual punishment.” Lately, this claim has been challenged by the scientific community and professional associations.

Michigan was the first US state to abrogate the death penalty in 1847. Since then, another seventeen states and the District of Columbia have followed suit, while the death penalty remains on the books (with varying degrees of application) in the rest of the country. Meanwhile, to give you an idea how this compares with some of our closest allies, Great Britain entered the ranks of abolitionist countries in 1971, Canada in 1976, France in 1981, and Australia in 1985.

Mongolia is the most recent Asian state to have abolished the death penalty, through a process initiated by its president, Tsakhiagiin Elbegdorj, in consultation with the Community of Sant’Egidio and Amnesty International. In the twenty-first century, the trend toward abolition has spread to Africa and Central Asia. As of October 2014, eighty-one countries have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights: Latvia, Mongolia, Guinea-Bissau, Poland, and El Salvador, most recently. And 167 states are party to it in one way or another. Over the last six years, fifteen states have ratified it (Chile, Argentina, Honduras, Rwanda, Uzbekistan in 2008, Brazil and Nicaragua in 2009, Kyrgyzstan in 2010, Benin and Mongolia in 2012, Bolivia, Guinea-Bissau, and Latvia in 2013, Poland and El Salvador in 2014).

That is real progress. Even so, it will be some time before we reach ratification by one hundred countries—the target Amnesty International set in our discussions in the late nineties before it would take the Resolution for a Moratorium to the UN General Assembly. It may take another twenty years. Meanwhile, the Second Optional Protocol is the only binding international document that represents the clear, official, international disavowal of the death penalty, even though it allows for a resumption in the case of war.

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Albert Camus, writing out of his experience in French Algeria, assaulted the death penalty with passion and eloquence. More and more, his view is becoming that of the majority:

“[B]eheading is not simply death. It is just as different, in essence, from the privation of life as a concentration camp is from prison. It is a murder, to be sure, and one that arithmetically pays for the murder committed. But it adds to death a rule, a public premeditation known to the future victim, an organization, in short, which is in itself a source of moral sufferings more terrible than death. Hence there is no equivalence. Many laws consider a premeditated crime more serious than a crime of pure violence. But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, confined him at his mercy for months. Such a monster is not encountered in private life.”