by Talbot Mundy
If premeditation adds to the enormity of crime (as is conceded universally) society is much more guilty than the man it executes! When we amend the constitution or elect a president, responsibility is ours. So are the electric chair, the gallows and the gas-room ours; and it is we who have done murder when our agent, the official executioner, turns on the current, pulls the trap, or lets the gas into the air-tight cell. Whoever, without protest, or without such lawful effort as he can make, tolerates a public execution, must accept a full share of responsibility. He is accessory, before and after the fact, to a killing; of which the final proof is, that he pays, in the form of taxes, his share of the expense.
So there is no escape from the responsibility. The blood-guilt rests on every member of society who tolerates the execution without lawfully made protest. That blood-guilt might be borne, perhaps, without indignity if no alternative were available. But is there none?
Three favorite excuses in behalf of the death-penalty are: that it costs too much to keep a man in prison; that the risk of the sentenced man’s escaping from prison by means of influence or legal subterfuge is too great; and that infliction of the death-penalty discourages other criminals. Which of those excuses stands investigation?
The expense, to the state and to the accused, of any modern murder trial, vastly exceeds what it would cost to keep the convicted man in a thoroughly up-to-date and well-policed establishment for the rest of his natural life (supposing that were necessary.) There is no doubt in the minds of judges, or of criminal lawyers, or of anyone familiar with our legal processes, that the legal safeguards we have erected to prevent the condemnation of a man on insufficient proof, have acted rather as a way of escape from, than as an aid to justice. They have bred a class of lawyers (totally abhorrent to the more humane, less sentimental and deliberately honest bulk of the profession) who enrich themselves by battening off criminals and by defeating justice. The expense of a criminal trial both to the public and to the man accused, increases steadily; and so does the number of unquestionably guilty men who are at liberty through the misuse of legal technicalities. Sentimentality lies at the root of this state of affairs — a sentimentality stirred and aroused by experts in psychology, who, diligent in making profit for themselves, becloud the genuine issue, which is this:
Crime having been committed, what course can the public profitably take with a view to the ultimate benefit of all concerned, the criminal included?
As to the risk of a sentenced man’s escaping from prison: that, again, is illogical and sentimental claptrap, as can readily be demonstrated. There are laws in certain states, devised for the protection of society and individuals against the ravages of tuberculosis. It is recognized that individuals in certain stages of that dread disease are dangerous to others, and that if allowed their liberty they are likely to spread the disease and consequently cause the death, not only of one or two individuals, but perhaps of many. They are therefore arrested and confined to suitable locations where they may receive attention from properly qualified specialists; and we are informed that, as a result of this, not only is tuberculosis decreasing but the patients themselves are often benefited.
Nevertheless, the risk that a tuberculous patient might escape from one of those institutions and spread a deadly disease, is quite as real as that other alleged risk, that murderers might escape, on legal technicalities, from institutions to which they might be committed for their own reeducation and for society’s protection. Consequently, it would be just as logical and vastly more far-reaching as a theoretical preventive, to send all tuberculous people to the gallows on the ground that (1) it costs too much to keep them in confinement and (2) they might escape if deprived of their liberty until cured.
And now as to the third excuse: exactly the same argument applies. It is admitted — custom, common-sense, the law, society at large, and all our theories of government admit, that murder is not normal; that is to say, that a murderer is not on a par with the average man. His character is lacking in those qualities that make him a good citizen. Society has long ago accepted the responsibility of shaping character as well as of improving and protecting public health — hence the public schools and compulsory education, night schools for the education of the immigrant, and so on. There are even classes (although far too few) in certain prisons; and the properly accredited representatives of societies devoted to reforming prisoners are admitted into all the prisons of the land.
But that is not all. It requires but a moment’s reflection to realize that society as a whole, through its own neglect, mismanagement and lack of discipline, has done its share (in many instances a very large one) in creating the environment and underlying causes of the murder that one individual commits. It would be difficult to find exceptions to that statement that will bear examination. Murder is the offspring of insanitary mental environment as certainly as physical contagions spring from unclean drains, insanitary cesspools and the like.
So there is no escape for society as a whole from responsibility, at least in part, and sometimes for a very large part, for whatever crimes its weaker individuals commit. And this responsibility has been acknowledged, practically and for many years, by means of the efforts society makes, and pays for, to eliminate the obvious injustices and public evils that incite to crime.
When murder is committed, then, society has failed. It is responsible, in part at least, for the conditions that produced the crime. Accepting that responsibility, it undertook to remedy conditions, to police its neighborhoods, to educate its citizenry, and to uphold standards of morality agreed to as wholesome and dignified — exactly as it has also undertaken to set up, constantly improve, and steadfastly enforce, sanitary standards that are wholesome and scientific.
When enforcement of the sanitary regulations fails, with the result that tuberculosis, or smallpox, or typhus ravages a whole community, the underlying causes are at once sought out and remedied. As far as possible the chief contributors to the insanitary state of affairs are found and brought to book. A campaign of re-education in that neighborhood is started promptly. And last, but not least, the dangerous and possibly guilty victims of the foul conditions are rounded up, cared for, given expert treatment, protected against their own ignorance, and kept out of harm’s way until they have recovered.
But when a murder is committed (one mere murder as compared to, possibly, a thousand deaths from a preventable disease) the mind-sick murderer is hanged or otherwise deprived of life and opportunity to learn the error of his ways! If the affair has been at all sensational (and the most obviously mind-sick cases cause the greatest amount of comment) newspapers by hundreds will print editorials invoking vengeance, sentimentally appealing to the passions of society that actually are the source of all the crime committed in the world!
Dignity obliges us to care for the tuberculous, it being evident that though they are a danger to society, society itself contributed to their condition. So we quarantine them and re-educate them, taking care to isolate them from the victims of less virulent disease, lest the isolation institutions should become mere hot-beds for the propagation and dissemination of the germs. Why not isolate and educate the murderer. Not only would it cost less than to make the trial-court a tilting ground for rival profiteers. It would be dignified. It would enhance the public self-respect. It would constitute at least an effort to counteract destructive evil with constructive good. It would eliminate that sentimental irritant of crime — bravado; there is no cheap heroism to be had from isolation, as a citizen whose character is sick; nor would the remedy, of discipline and schooling, tempt undisciplined and ignorant, immoral men and women to commit crime for the sake of posing in the limelight.
There is a play called Heliogabalus written by Messrs. Mencken and Nathan, in which that peculiarity of human nature is adroitly used. Heliogabalus, the Roman emperor, sentences to an excruciating death some members of a new creed that is annoying him; but he discovers that these people simply yearn for martyrd
om, so he cancels the sentence, thus depriving them of the reward for which they have so selfishly and sentimentally disturbed the public peace! Self-pity, self-advertisement, vanity and false ideals (too often mingled with a consciousness of grave injustice) tend to stir fanaticism in the minds of people of unbalanced character. Make death at the hands of an executioner the penalty for giving rein to their passionate impulse, and they begin to imagine that death heroic.
But let it once be known that he who slays shall be regarded as an individual whose character is ailing; that he shall be taken from the limelight, quarantined, provided with a wholesome occupation, medically treated, and firmly disciplined by experts who are under no delusions about heroism — and he will hesitate before he gives his passions rein as juries will not hesitate to convict.
The conscientious dread of sending a man to his death who may, after all, be innocent, too often impels juries to let individuals go free who obviously are a danger to society. The knowledge that a verdict of ‘guilty of killing’ would entail re-education for the convict, and his rehabilitation should he not be too degraded to recover in one lifetime, would remove not only one of the main difficulties in obtaining juries but also, by eliminating nine-tenths of the sentimentalism that confuses issues, would encourage reasonable verdicts.
The advocates of capital punishment assert that the majority of murders are committed by young criminals addicted to the use of drugs and so conscienceless as to be beyond the reach of moral suasion; that the prevalence of murder is a product of the war; and that prison holds no terrors for the bandit who will ‘shoot to kill.’
But terror is no remedy. When prisons were insanitary hells, in which the sentenced men and women were deliberately starved and bullied, there was no resultant lessening of crime. The criminals, released after they had served a sentence, repeated their crime and returned into prison more frequently than they do nowadays, when prisons are less terrible.
If drugs have anything to do with it, as seems to be admitted by most investigators, then society must accept the responsibility. By failing to control the distribution of the medically necessary drugs, and secure the suppression of the traffic in unnecessary ones, society is just as much at fault as if it had neglected to inspect the sewers. If the drugs made young men murderous, the isolation of those young men in a place where drugs were unobtainable, with scientific discipline unsentimentally enforced, would provide the reasonable remedy besides removing the attraction of a mock-heroic death. Many a youth educated among seasoned criminals and maddened by the recent war, as well as irritated by injustice and psychologized by public sentimentalism, feels the same way about death by execution as the prize-fighter feels about a possible defeat in the ring. He regards himself as a ‘good sport’ if he accepts the risk, and as a ‘poor sport’ if he does not. He imagines for himself a glamor in being hanged. He mocks society, and his intelligence assures him that the public proves itself contemptible by hanging him. He would feel very differently toward isolation and a scientific course of education calculated to expose his own degeneracy to his own awakened consciousness.
It is no doubt true, the war aroused a murderous bravado in the minds of many of the weaker characters who had no voice whatever in declaring war, no share in its atrocities, and no remotest notion why the war was fought. Their characterless, utterly unmoral attitude toward life made them as susceptible to ‘crime waves’ as a slum environment would have made them susceptible to disease of the body. Society accepts responsibility for slums — eradicates them, cleans them, punishes the landlords, and endeavors to restore to health the victims of the slum conditions. Did society not cause the war? If the results of war include a murderous proclivity among the country’s youth, does the penalty of death for young men who have yielded to the war-psychology approximate, or even vaguely suggest, justice?
There was far more justice in the ancient ‘pagan’ rule that he who slew should recompense the slain man’s family, and that if he had no property from which to make a reasonable tribute he must yield himself into their service. Crude, and capable of harsh interpretation though that system was, it did accept the principle that death is not a remedy for death and vengeance is not justice. It was an attempt, however rudimentary, to yield to any man, however criminal his character, the right to rehabilitate himself. It recognized the fact that breaking platters does not mend plates.
I recall an execution I was forced to witness as the official representative of a colonial government. The man had been convicted of a triple murder, after fair trial, in the course of which all the evidence was carefully investigated although the man had already confessed his guilt. There was no doubt whatever about the facts of the murder, or about the law of the land; the jury and the judge had no alternative but to find the man guilty and sentence him to death. Efforts, after he was sentenced, to have him certified insane, were abortive; the doctors, who would have liked to save his life, found no insanity, and the law, being such as it was, had to be carried out.
Knowing I would have to witness the man’s death, and having done what could be done, in vain, toward obtaining a reprieve, I spent as much time in the man’s cell as the regulations would permit, in part, in the beginning, out of curiosity to know what thoughts were passing in his mind. I have never, since, heard of a case that more completely covered the situation of the ‘average’ criminal condemned to death, although the details were superficially different from most.
He was a half-breed. That is to say, from earliest infancy he had suffered social ostracism and, despite intelligence above the ordinary as well as a full share of energy and ambition, practically all the well-paid and dignified callings were closed against him. He had been obliged to seek companionship among other half-breeds, all of whom suffered from the same disadvantage and resented it with concentrated bitterness. He had a worm’s-eye view of things. He had observed that his alleged superiors were better paid for doing less work; accorded dignity, although infrequently entitled to it on their merits; better housed and fed than he had ever been without, as far as he could see, contributing as much as he did to the public effort; privileged to misbehave, in ways for which he would have suffered punishment; apparently taxed less and favored, as he saw it, by the law, the church, society at large, and even by the miserable layers of humanity considered lower than his own.
He had inherited a grievance. He had done his best, or what appeared to him to be his best, to remedy the situation. Coveting a ‘cushion up in front,’ as he expressed it, he was relegated to a ‘place where you can sniff the gravy as it goes by.’ And although, for the sake of his poorly paid job, he had behaved himself apparently respectfully toward his betters, he had suffered all his life long from resentment, that increased as he dwelt on it and discussed its irritating causes in the only intimate company that society permitted to him.
That is the case of the average criminal. It is the case of nine murderers out of ten — an undeniable grievance, irritated by a consciousness of baffled energy and of superiority (whether physical, intellectual or along the line of mere brute courage) to many of those members of society who pass for his betters.
Exactly the same form of resentment, widely enough spread, and given time, produces revolutions — always has produced them — always will.
The man under consideration, nursing his grievance and thoroughly convinced, from observation, of the sheer futility of expecting any justice from the public, found himself presented with an outlet for his indignation. He proposed to himself to marry the daughter of a man, whose strain of white blood was reputedly not quite so much diluted as his own. The girl, apparently, was willing but the father heaped insults on him and, to add to the indignity, spread slanderous reports, which were believed by two of the man’s friends, who turned on him. So he found himself without friends and the butt of ridicule; and when he sought for legal remedy he was informed that no criminal law had been broken and that his only recourse would be a civil suit for damages, for whi
ch he had not nearly enough money, even if he could have produced the necessary witnesses.
So he began to brood over his wrongs and to drink, although he was not drunk on the day when he at last let passion have its way, and went and murdered the three men who had maligned him. On the day before his execution, this is what he said:
“You’re white and I’m not. You’ve never felt what I’ve been through, but I’ve heard you admit that you don’t know what you would do if you had the half of my inducement. All right. Now I’ll tell you this; and it’s straight, from as deep inside me as a man can dig when he’s to die tomorrow morning: I had to kill those three men. There was something crept into me, and took hold of me, that was stronger than reason, and stronger than fear, and stronger than me. But I would have been stronger than ‘it,’ if somebody had come along and been my friend before it took hold of me. But nobody did come, and they were all my enemies. If anyone had asked me a week ago ‘would I do it again?’ I would have answered ‘yes’; and I tell you, I meant to die tomorrow morning cursing the mother who brought me into the world. But you’ve talked me into feeling different. You’ve made me feel friendly — honest friendly — for the first time since I can remember. You’ve made me feel—” (He hesitated and sat still for a long time, searching for words with which to express himself.) “ — If I could have another chance, I’d lick that thing that — that came over me like a sickness and — but you can’t understand. It was something that wasn’t me, and I stood it off at first. But it felt good, and I didn’t feel so lonely and downhearted when I let myself go. So I did. And it got me. And I went and killed.”
I had told him nothing about reincarnation, because, in those days, although I believed in it, I did not know anything definite or authoritative and did not care to urge what might be my mistaken views on a man in his desperate situation. I had merely expressed to him my conviction that we are all members of one purposeful universe, and had encouraged him to talk to me. But this is what he said:
