Tarlton Law Library
Jamail Center for Legal Research

     One of the most fiercely contested fronts of the continuing conflict over capital punishment in the United States is statistical. In the case of Gregg v. Georgia, the Supreme Court of the United States was asked to decide issues of life and death on the basis of econometric studies of Professor Isaac Ehrlich that concluded, contrary to earlier findings, that capital punishment has a deterrent effect on murder and that "an additional execution per year over the period in question [1933-1969] may have resulted, on average, in 7 or 8 fewer murders." In the winter of 1975-76 the Yale Law Journal published critiques of Ehrlich's work, together with his rejoinders, and strong words were exchanged about the appropriateness of statistical "regression" analysis to criminal conduct, the accuracy of Professor Ehrlich's theories as to the variables influencing the murder rate, the quality of his data, and the validity of his statistical technique.
     The decision of the Supreme Court in Gregg, 428 U.S. 153(1976), did not resolve the controversy. While holding that capital punishment was not under all circumstances "cruel and unusual," the Court rejected the statistical studies on deterrence as "inconclusive." However, the majority opinion stated that for some murderers "the death penalty undoubtedly is a deterrent"; and that "retribution," the second principal "social purpose" of the death penalty, is neither "a forbidden objective nor one inconsistent with our respect for the dignity of man."
     There is a distinctly American flavor to the econometric debate over deterrence. As Dwight MacDonald pointed out many years ago in his essay The Triumph of the Fact, Americans are enamored of statistics whether they relate to batting averages or to major political or social issues. Ironically, it does not appear likely that Professor Ehrlich's conclusions, even if confirmed by further research, will be a decisive influence on the judgments the courts and the state legislatures must make on the retention or abolition of capital punishment. Professor Jon K. Peck, in trying to moderate the opposed views of Ehrlich and his critics, has pointed out the relative insignificance of capital punishment as a deterrent even under Ehrlich's own equations: a one percent change in per capita income produces a greater effect on the homicide rate than a one percent increase in the number of executions. Professor Ehrlich has himself emphasized that he has not advocated the use of capital punishment and that "the issue of deterrence is but one of a myriad of issues relating to the efficiency and desirability of capital punishment as a social instrument for combating crime." 

     Therefore, as we await further reports from the statisticians, we will continue, as our ancestors have done, to listen to other voices on the issues of capital punishment. Those who take some guidance from the minds and hearts of our great writers will find that the literature of capital punishment is a primary source to be consulted.

The Eighteenth Century

     The eighteenth century was for the English a heyday of crime and the Golden Age of Deterrence. England's so-called "Bloody Code" (which was not adopted in the American Colonies) imposed the death penalty for hundreds of crimes from murder to trivial shopliftings. The frequent public hangings which were carried out in London in the name of deterrence did nothing to stem an enormous tide of violent crimes and thefts, and appeared to serve the principal function of public amusement, not only for the working classes (who were generally given a holiday on "hanging day") but for the educated as well. The same age that produced this savagery also gave us Henry Fielding and Samuel Johnson.
     Henry Fielding, who is known to us all as the author of Tom Jones, is remembered in the history of criminal law as a tough-minded and compassionate justice of the peace of Middlesex County and the City of Westminster (Greater London). Regarded as a founder, with his blind brother John, of London's police force, Fielding was faced with a terrible conflict between his recognition of the inhumanity of the frequent executions under the "Bloody Code," and his abiding faith that capital punishment, properly applied, could have a deterrent effect on the rising crime rate.
     Fielding set down his thoughts on criminal punishment in his treatise An Enquiry Into the Causes of the Late Increase of Robbers (1751). Quoting Lord Hale, he postulated that the principal end of all punishment was less to punish for past offenses than to "deter men from the breach of laws, so that they may not offend and so not suffer at all." The humane goal of punishment then was to make punishment unnecessary at some point in the utopian future. Only with that hope in his heart could Fielding be reconciled to the infliction of capital punishment for petty thefts, for "no man indeed of common humanity or common sense can think the life of a man and a few shillings to be of an equal consideration, or that the law in punishing theft with death proceeds (as perhaps a private person sometimes may) with any view to vengeance. The terror of the example is the only thing proposed, and one man is sacrificed to the preservation of thousands."
     And so the kindly Fielding set about the task of proposing how the terror of punishment could be maximized. First, the sovereign must 

renounce his prerogative of mercy and decline to pardon criminals under death sentence, for "pardons have brought many more men to the gallows than they have saved." Second, reforms must be introduced into the manner of execution, since a convicted thief, far from fearing death., often viewed his execution as a source of glory rather than shame, and the procession to the gallows at Tyburn (the site of the modern Marble Arch) as a triumph.
     The greatest cause of the convict's bravado Fielding found in the very frequency of executions in the city -- "the thief who is hanged to-day hath learned his intrepidity from the example of his hanged predecessors." The design of those who made executions public had been to add the punishment of shame to that of death, but experience had been contrary: the mob found diversion and the convict an easy heroism. One way of preventing frequency of executions was to attack the roots of crime, and Fielding in his treatise suggested a broad store of remedies -- restraint of the passion for luxury, drunkenness and gambling; improvement of provision for the poor; stricter punishment of receivers of stolen goods; and improved administration of criminal justice.
     While these goals were being pursued, the performance of executions should be modified. Executions should not be delayed so long that public resentment of the crime cooled and that the punishment itself became the sole subject of contemplation. "No good mind," Fielding wrote, "can avoid compassionating a set of wretches who are put to death we know not why, unless, as it almost appears, to make a holiday for, and to entertain, the mob." He also proposed that executions be to "some degree private" so that, taking added intensity from the imaginations of the excluded public, they could assume the terror of the offstage murders of classical drama. Terror should also be heightened, Fielding wrote, by giving execution the highest degree of solemnity. He suggested that at the end of the trials the Court of Old Bailey be adjourned for four days; that a gallows be erected in the area before the court; and that all the convicted criminals be brought down together to receive sentence and be executed forthwith in the presence of their judges. Fielding had little room for appellate courts in his scheme of things.
     Samuel Johnson, unlike Fielding, announced himself an enemy of those who tinkered with the time-honored festival of public hanging. In 1783, he lamented to Sir William Scott the abolition of the procession to the hanging site at Tyburn:

The age is running mad after innovation; and all the business of the world is to be done in a new way; men are to be hanged in a new way; Tyburn itself is not safe from the fury of innovation. . . . It is not an improvement; they object, that the old method drew together a number 

of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators, they don't answer their purpose. The old method was most satisfactory to all parties; the publick was gratified by a procession; the criminal was supported by it. Why is all this to be swept away?

The Nineteenth Century

     Literary history also tells us that Gary Gilmore was far from the first condemned man to announce a preference for execution over imprisonment. A melodramatic precedent was recorded by Frances 

     Trollope in her comments on an execution in Cincinnati in Domestic Manners of the Americans (1832). A great throng assembled for the hanging, not for traditional merrymaking as in eighteenth-or nineteenth-century London but to witness a novelty, for Mrs. Trollope notes that her informants told her no white man had ever been executed at Cincinnati. The convict, who had been condemned on the testimony of his own son, turned down an offer of reprieve from the governor of Ohio, saying to the sheriff, "If any thing could make me agree to it, it would be the hope of living long enough to kill you and my dog of a son: however, I won't agree; you shall have the hanging of me." The sheriff on the day of execution assumed his alternate office of hangman, but with his watch in one hand and in his other the knife for cutting the rope, made one last effort to obtain the criminal's acceptance of the offered commutation. Unlike Gilmore, the Ohio convict had a last minute change of heart, and when "the hand was lifted to strike, . . . the criminal stoutly exclaimed, I sign'; and he was conveyed back to prison, amidst the shouts, laughter, and ribaldry of the mob." Mrs. Trollope concluded: "I am not fond of hanging, but there was something in all this that did not look like the decent dignity of wholesome justice."
     In the early nineteenth century a group of law reformers led by Sir Samuel Romilly mounted an attack on England's Bloody Code that finally succeeded in reducing the number of capital provisions from over 200 to 15. The battle for the absolute abolition of capital punishment was to be waged for the next century and a half. Among the outstanding voices raised in the cause of abolition during the Victorian period were those of Dickens and Thackeray.
     Thackeray anticipated Dickens's more famous abolitionist writings by several years. Thackeray's essays on the death penalty were the product of a highly personal blend of morbid fascination with public hanging and an intense, almost hypochondriacal empathy with the hanged man. His 1839 article on the execution of Sebastian Peytel, which he had unsuccessfully sought to attend, presents many of his principal arguments against the death penalty. First of all, Thackeray, like Balzac who had also interested himself in the case, was not sure that Peytel was guilty of the murder with which he was charged. He urged that we should "at least, be sure of a man's guilt before we murder him." In his peroration against the execution of Peytel, Thackeray forcibly put other arguments: that the execution does not deter others from crimes and is a source of entertainment rather than moral profit; and that imprisonment is an adequate alternative means of protection of society.
     The scope of Thackeray's opposition to capital punishment widened in his "On Going to See a Man Hanged" (1840) written after he finally attended a hanging (of the murderer Courvoisier) and found he could 

not bring himself to look. The question of doubtful guilt did not now condition his views since the hanged man's guilt was conceded. But Thackeray's strong personal identification with Courvoisier was supported by the insight that hanging was pornographic: that it brutalized the public by appealing to its sensual instincts. He was left with "an extraordinary feeling of terror and shame," springing from his partaking with 40,000 others in "this hideous debauchery, which is more exciting than sleep, or than wine, or the last new ballet."
     Thackeray and Dickens saw each other in the crowd at Courvoisier's hanging but neither could catch the other's eye. Dickens did not react to the sight with the emotional immediacy of Thackeray. Indeed, public executions continued to exert on him what he called the "attraction of repulsion." Philip Collins in his admirable work Dickens and Crime (1962) has defended Dickens against the charge of being a "masculine Madame Defarge," but the fact is that he attended three or possibly four executions. Thackeray, so far as we know, gave up death as a spectator sport after the Courvoisier execution, and once turned down an invitation to a foreign beheading, commenting, "j'y ai été" [I've been there already], as the Frenchman said of hunting."
     Despite the ambivalence of the emotions that were stirred by Dickens's observation of executions, the Courvoisier hanging undoubtedly had a great impact on his conscience. He recalled the scene vividly six years later in the first of a series of four long articles to the Daily News in which he advocated the total abolition of capital punishment. He wrote of the effect of the execution on the crowd in attendance: "No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, levity, drunkenness, and flaunting vice in fifty other shapes. I should have deemed it impossible that I could have ever felt any large assemblage of my fellow-creatures to be so odious." In his arguments against capital punishment, Dickens emphasized as had Thackeray its tendency to barbarize and desensitize the community. He also quoted several examples of hangings of the innocent, including a report of a New York Select Committee. (Six years later in Bleak House Dickens satirized the desire of the public to see murder avenged by the execution of somebody regardless of guilt or innocence: the "debilitated cousin" opines to Inspector Bucket in his slurring style that he "hasn't a doubt -- zample -- far better hang wrong fler [fellow] than no fler.") Dickens also cited statistics that abolition of the death penalty in certain foreign countries had not led to increases in their murder rates. As an additional blow to the deterrence theory, he cited a favorite statistic of abolitionists: that according to a prison chaplain in Bristol, only 3 of the 167 prisoners he had attended under sentence of death had not been spectators at public executions.

     The uniqueness of Dickens's articles, however, lies not in the assembling of these arguments but in the application of his fictive imagination to the potentially harmful role of the gallows in shaping the evil resolves of the would-be murderer. He noted that for the murderer with exhibitionistic instincts the death penalty and its attendant notoriety, far from acting as a deterrent, in fact provide an incentive. The "ill-regulated mind" of the murderer actuated by revenge, Dickens argued further, might impel him to kill on the basis of the mechanistic calculation that capital punishment, by demanding life as the price of a life, had removed the "base and cowardly character of murder" and that society by hanging him would receive its just bargain. Pursuing this line of thought, Dickens feared that the prospect of hanging might also incite the wife-murderer who could feel that his crime was not the cowardly slaughter of a woman but a heroic challenge to the shadow of the gallows and a response to its dark fascination: "Present this black idea of violence to a bad mind contemplating violence; hold up before a man remotely compassing the death of another person, the spectacle of his own ghastly and untimely death by man's hands; and out of the depths of his own nature you shall assuredly raise up that which lures and tempts him on." Later in the forties Dickens abandoned his advocacy of total abolition of capital punishment, but passionately urged an end to public hanging in his famous letters to the Times which were inspired by the obscene behavior of the crowd at the hangings of Frederick and Maria Manning.
     Dickens emphasized that his writings against capital punishment and public hanging were not inspired by sympathy for the criminal, whom he claimed (in an article against flogging) to hold "in far lower estimation than a mad wolf." It was as a novelist rather than as a wavering abolitionist that Dickens taught most persuasively that the passion to save and conserve life is a communal force that binds and enhances society however worthless may be the individual whose life is saved. In Our Mutual Friend, a doctor, with the help of four tough habitues of a riverside tavern, does his human best to revive the villainous Rogue Riderhood, who has fallen into the Thames. The onlookers are rewarded by a sign of returning life in a man they despised before and would despise again: "See! A token of life! An indubitable token of life! The spark may smoulder and go out or it may glow and expand, but see! The four rough fellows seeing, shed tears. Neither Riderhood in this world, nor Riderhood in the other could drag tears from them; but a striving human soul between the two can do it easily." This passage can do much to explain how many people can favor capital punishment in principle but hope it will never be applied, or struggle to save a Gary 

Gilmore from an overdose, though knowing that in another room a firing squad will claim him.

The Twentieth Century

     Prior to World War II George Orwell made a poignant contribution to the literature of capital punishment with A Hanging (1931), his eyewitness description of an execution in a Burmese prison yard. Recreating the horror of the scene with a novelist's eye for cumulative physical detail -- the last-minute incursion of a prancing half Airedale, the "bobbing gait" of the slight Indian prisoner on his way to the gallows, his reiterated prayer cry of "Ram! Ram! Ram!" answered by the howls of the dog -- Orwell recalled a minute action of the convict that brought home to him the meaning of what was being done. During the procession to the place of execution, in spite of the tight grasp of two warders, the condemned man "stepped slightly aside to avoid a puddle on the path." Orwell, who "had never realized what it means to destroy a healthy, conscious man," now saw "the mystery, the unspeakable wrongness, of cutting a life short, when it is in full tide." He wrote of the prisoner during that last walk: "His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned -- even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone -- one mind less, one world less."
     After the war two works urging abolition of the death penalty were published in this country by influential European writers, Arthur Koestler's Reflections on Hanging (1956) and Albert Camus' Reflections on the Guillotine (1959). Both writers were inspired by traumatic personal experience. "In 1937, during the Civil War in Spain," Koestler wrote in his preface, "I spent three months under sentence of death as a suspected spy, witnessing the executions of my fellow prisoners and awaiting my own." Camus recalled that when he was a child his father arose in the dark to attend the execution of a brutal murderer who had slaughtered an entire family of farmers. One of the few things Camus knew about his father was that this was the first time he had wanted to witness a guillotining. He never forgot his mother's account of his father's return:

He never told what he saw that morning. My mother could only report that he rushed wildly into the house, refused to speak, threw himself on the bed, and suddenly began to vomit. He had just discovered the reality concealed beneath the great formulas that ordinarily serve to mask it. Instead of thinking of the murdered children, he could recall 

only the trembling body he had seen thrown on a board to have its head chopped off.

     Camus argued, but he doubted that it deterred either the crime of passion or those who lived by crime. In that crowd in which Camus' father stood "there must have been a considerable number of future criminals who did not run home and vomit." It could not be denied that men fear death, but Camus believed such fear could be overmastered by human passion or neutralized by the criminal's instinctual optimism -- that he will not be caught, will not be found guilty, will not be sentenced to death, or will not be executed.
     Rejecting the deterrent function of the guillotine, Camus brands it a form of revenge that is "as old as man himself, and usually goes by the name of retaliation." But capital punishment more than matches murder, he adds. Rarely does murder have the degree of cold premeditation or impose such agonized waiting in which "torture by hope alternates only with the pangs of animal despair." If there were to be a real equivalence, "the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters."
     Camus tests the strength of his own belief in abolition by raising the question whether he would forbid application of the death penalty to "irrecoverables" such as mass murderers. Even in this case he decides against capital punishment, fearing judicial error (as in the case of Marie Besnard) or the pressures of public opinion (as in cases of terrorist acts judged in the light of "accidents of the times . . . and of geography"). But even "monsters" he would not subject to the "absolute" punishment of death since there is no absolute innocence. As a matter of logic he would deny to no man the right of reparation by his later life in a secularized world which has lost faith in the possibility of redemption beyond the grave.
     Camus' ultimate arguments are social and political. Capital punishment is wrong in Camus' view because it "destroys the human community united against death" (a community Dickens had sketched in small as the four men cheered by the revival of Rogue Riderhood). Moreover, our civilization defines itself, Camus concludes, by the fact that "for thirty years crimes of State have vastly exceeded crimes of individuals" not only through war but also political killings. He urges that the abolition of the death penalty is the first step in the denial of the right of the State to destroy its citizens.

Postscript: The "Perfect" Death

     The literature of capital punishment often dwells on the clumsiness of the tools of death. We read of the headsmen who missed; of the (almost literally) immortal Half Hanged Smith; of the ingeniously contrived "new drop" which was new but did not drop; of the electric chairs with defective circuiting. Doubts continue, we are told, that even the guillotine brings instant oblivion, and at least a qualm of credulity is aroused by the tale that the cheek of the severed head of Charlotte Corday, when slapped by the assistant executioner, flared with indignation. If one's mind is in close balance on the death penalty, it is tempting to divert the issue of "cruel and unusual punishment" from the fact of death to the means of killing. One might even become nostalgic over the days when a cup of hemlock was passed to troublesome philosophers. But death, however painless, remains the issue. John Webster's Duchess of Malfi reminded her executioner of this when he attempted to terrify her with the sight of her own coffin and the cord with which she was to be strangled:

What would it pleasure me to have my throat cut
With diamonds? or to be smothered
With cassia? or to be shot to death with pearls?

     For the exchange of views on the validity of Professor Ehrlich's studies, see 85 Yale Law Journal 164-227, 359-69 (1975-76). Dwight MacDonald's "The Triumph of the Fact: An American Tragedy" originally appeared in 2 The Anchor Review 113-144 (1955).
     18th Century Sources: Henry Fielding's An Enquiry Into the Cause of the Late Increase of Robbers (London 1751); and Samuel Boswell's Life of Samuel Johnson (New York: Modern Library, 1931). Page references in the Modern Library edition are as follows: Most hanged criminals have "never thought at all," p. 357; Johnson's intervention for Dr. Dodd, pp. 707-14; Johnson's lament for the abolition of the procession to Tyburn, p. 1033.
     19th Century Sources: Frances Trollope, Domestic Manners of the Americans 163-166 (New York: A.A. Knopf, 1949)(Donald Smalley ed.). Thackeray: "The Case of Peytel" in William Makepeace Thackeray, 2 The Paris Sketchbook (New York, Appleton, 1853); "Going to See a Man Hanged," in 6 The Complete Works of William Makepeace Thackeray (New York: Harper & Brothers, 1903). Dickens: Letters to the Daily News of 28 February, and 9, 13 and 16 March, 1846 (advocating the abolition of capital punishment); letters to the Times of 14 and 19 November, 1849 (letters against public hanging inspired by Dickens's attendance at the execution of the Mannings). The remarks of the "debilitated cousin" on capital punishment appear in chapter 53 of Bleak House.
     20th Century Sources: Albert Camus, "Reflections on the Guillotine," in Ephraim London (ed.), 2 The World of Law 512-52 (New York: Simon and Schuster, 1960); Arthur Koestler, Reflections on Hanging (London: Gollancz, 1956); Arthur Koestler & C.H. Rolph, Hanged By the Neck: An Exposure of Capital Punishment in England (Baltimore: Penguin Books, 1961); George Orwell, "A Hanging," in Decline of the English Murder, and Other Essays 14-19 (Harmondsworth, England: Penguin Books, 1965).

* This article was previously published in 64 ABAJ 1259-1265 (1978) and in A Gallery of Sinister Prespectives pp. 144-54.