Death
Forward-looking motives prompted even more different sanctions than backward-looking ones did. Before mass media, deterrent punishments had to be brutal and public. Carried out in secret, an execution only incapacitated.
But a hanging in the town square was thought to concentrate the subjects' minds, not just amuse the rabble. Early states could caution their subjects against transgressing mainly through theatrical cruelty, amplified by word of mouth. The mass public trials held by the totalitarian regimes in the Soviet Union and China served similar purposes.92As crimes were recognized to have broad implications for society as a whole, punishment both retributed for wrong and aimed to prevent its reoccurrence. Death has historically been the most conÂsistently used penalty, still on the books in one-third of all nations today. Vengeance commonly demanded it, and the state, with its first forays into adjudication, in fact curtailed capital penalties as it sought to reduce mayhem and bloodshed. But as the state itself took over punishing, it wanted to demonstrate that it, too, could adminÂister justly harsh penalties. Death quickly became among the truest arrows in its quiver. By the standards of its day, the Old Testament decreed death comparatively sparingly, for perhaps some thirty types of crimes. Islamic law knew only three capital crimes: robÂbery, adultery, and apostasy.93 But of the 359 articles in the Chinese emperor Wu's code, 409 statutes related to the death penalty.94 And Dracon's code (seventh century BCE) used scarcely any other punishÂment. Dracon thought small offenses deserved it, and he knew of no worse punishment for the serious ones. The Greeks considered capital punishment insufficient for deliberate parricide, the worst form of murder, so they stoned such killers' corpses at a crossroads at the city's edge, then hurled the body beyond its boundaries.95
Death, in fact, came as a welcome relief from the preliminary torÂtures inflicted on many criminals.
William the Conqueror abolished the death penalty, judging it overly lenient. He preferred to treat his enemies as slaves, blinding and castrating them.96 Even today, the logic of retribution suggests that some crimes—such as genocide— perhaps deserve more than simple death.97 Beccaria put his finger on the problem: since the human body could suffer only so much, the most enormous crimes were not adequately punished by pain alone.98As we have seen, when defending against a common danger, the state readily assumed the authority to punish drastically on society's behalf. Having once regarded death as merely an efficient method of incapacitation, Roman law began to aim higher, hoping to set a deterrent example. Under Tiberius (d. 37 CE), it sought to prevent those sentenced to death from committing suicide before the state exacted its due.99 In the fifteenth century, the Russian state spoke for the communal interest, even at the expense of crime's victims, by forbidding compensation (by money or enslavement) for espeÂcially heinous offenses, insisting instead on death. In 1537, ChrisÂtian III of Denmark demanded capital punishment for all homicides (other than accidents or acts of self-defense) because kin's ability to pay restitution was undermining deterrence.100 This spirit of capiÂtal punishment serving the common cause infused the commission reforming German penal law in 1906 when it described capital punÂishment as an act “in which the majesty of the state achieves its most powerful expression.”101
But death has been more than just another sanction, and its use contentious. Its origins were theological—a sacrifice to appease the gods.102 Its finality lent it gravity and moral import. The state illegitimately assumed God's role in deciding life and death, said the death penalty's opponents. But the authorities were just using their most potent weapon to protect the community, came the riposte.
After all, the state sacrificed soldiers in extremis for the common good.103 Why did it not have analogous moral authority to battle and kill internal enemies? Did capital punishment undermine the broader goal of reducing crime? Did the state contradict itself by killing to punish killing? Such have been the debates.However much we pride ourselves on our humanity and comÂpassion, capital punishment has faded as much because the state no longer needed it as thanks to any groundswell of popular revulÂsion. Quite the contrary: in most countries, the death penalty was and remains popular. In ancient Rome, capital punishment asserted republican freedom: a citizen could be executed only after trial by his assembled peers.104 When death sentences were first restricted starting in the nineteenth century, reformers were acutely aware of bucking public opinion. The French revolutionaries, who othÂerwise changed so much, kept the death penalty. Massive public campaigns resisted its abolition when that was proposed in France in 1906. The death penalty was finally ended in 1981 despite conÂtinued support from two-thirds of the public.105 Capital punishÂment remains in effect in many nations—in some as an instrument of state terror, in others thanks to its popularity. Having been all but abolished in America during the early 1970s, the death penalty made a comeback, especially in the South and the West. Unlike for other punishments, juries rather than judges pronounce sentences in capital cases, and officials who advocate capital punishment are often elected by a public eager for retribution.106
In Western nations, capital punishment has been abolished largely at the instigation of the professionals involved and allied elite opinion. In recent times, social elites have only rarely favored capital punishment—in twentieth-century Germany up through the 1950s and in contemporary China.107 Iran may be on the verge of flipping, though elsewhere among the Middle Eastern autocraÂcies capital punishment remains widely used.
The death penalty became a human rights issue in Europe only long after it had been abolished, sometimes for self-serving reasons, such as sparing forÂmer Nazis, but also in revulsion at the Third Reich's mass murders.108 Niklas Frank opposed the death penalty for everyone except his father, Hans Frank, chief jurist of the Nazi Generalgouvernement in Poland, who was hanged at Nuremberg.109 And, indeed, the Allied imposition of death at Nuremberg complicated efforts to abolish it subsequently at home—in Britain, for example.110Even so, which higher principle took precedence? The state not killing or the state justly punishing evil? Whose lives mattered most—victims' or criminals'? By the 1840s, British proponents of retaining capital punishment had turned the sanctity-of-life arguÂment in their own favor, arguing that by not executing murderÂers, the state was not taking victims' deaths seriously.111 “Treating criminals humanely is in effect tolerating the inhumanity that they have shown their victims,” was how a Chinese pro-death activist recently put it.112 That is the standard argument, fighting fire with fire. Yet even those who oppose everyday death sentences ponder the extremes. Urged on by strong popular and press demand for retriÂbution, the Norwegian Parliament overwhelmingly reinstituted the death penalty after World War II for traitors and collaborators with the Nazis. “Humanism and mercy for traitors betrays the people” read the banners in massive demonstrations in Oslo in 1945. After the genocide in 1994, Rwandan authorities were dismayed to disÂcover that only the Hutu killers tried at home could be sentenced to death, whereas those tried before the International Criminal Tribunal were spared. Saddam Hussein was never brought to an international tribunal because the Iraqis and Americans insisted on the possibility of capital punishment, and, indeed, he was eventually executed.113