Mugambi Jouet, Death Penalty Abolitionism from the Enlightenment to Modernity, The American Journal of Comparative Law, Volume 71, Issue 1, Spring 2023, Pages 46–97, https://doi.org/10.1093/ajcl/avad011
Navbar Search Filter Mobile Enter search term Search Navbar Search Filter Enter search term SearchThe modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively. The movement does not emphasize that killing prisoners is inhumane per se. Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs. By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity. This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions. This Article demonstrates that, in reality, the significant transatlantic divergence on abolitionism is a relatively recent development. By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms. Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions. It was not until the 1970s and 1980s that a major divergence materialized. As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, abolitionists largely abandoned humanistic claims in favor of practical ones. Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe. These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law. While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment. But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.
As America stands increasingly isolated in retaining the death penalty, 1 two Supreme Court Justices made a clarion call for abolition. In a case upholding lethal injection procedures, Stephen Breyer and Ruth Bader Ginsburg went beyond the pleadings in a dissent encouraging litigators to bring a test case for outright abolition. Their landmark opinion marshaled a host of reasons, including recurrent due process violations, racial discrimination, and exonerations of innocents. 2 The dissent, republished in a book entitled Against the Death Penalty, was essentially an abolitionist manifesto. 3 What it omitted in its twenty-two pages and five appendices is therefore striking. The dissent nowhere suggests that killing prisoners is cruel or inhumane per se. Rather, it focuses exclusively on administrative, procedural, and utilitarian problems. The landmark Breyer–Ginsburg opinion embodies modern American abolitionism. Its approach reflects the now-popular notion that the death penalty system is irremediably “broken.” 4 It is fundamentally a practical argument—executing people “does not work.”
By contrast, European authorities recognize the death penalty as an inherent violation of human rights and human dignity in all cases and under all circumstances. 5 This humanistic approach denies the relevance of practical problems, because killing prisoners is unjustifiable. The prisoner’s right to life has become inalienable. 6
The divergence is not absolute, as certain Americans argue that executing prisoners is intrinsically immoral, 7 despite the U.S. debate’s focus on practical concerns. 8 It may well be that most American abolitionists oppose capital punishment on moral grounds, but choose to stress consequentialist objections due to actual or perceived constraints, such as the greater receptiveness of U.S. judges, legislators, and public opinion to problems like innocence and discrimination. 9 Nevertheless, a significant divergence in framing abolitionism exists in America and Europe nowadays.
The stakes in framing the issue are critical. Although death sentences and executions have dropped in twenty-first century America amid declining public support, 10 the United States remains among the leading executioners worldwide alongside dictatorial regimes. 11 The profound divergence in framing abolitionism in Europe and America is often assumed to reflect distinct sensibilities: Europeans appear disposed toward humanistic concerns about killing, whereas Americans focus on practical problems because they have fewer moral reservations about executing murderers. Put otherwise, a consequentialist approach is assumed to be a fundamental trait of American culture, whereas European culture embraces deontological arguments about human rights and dignity. This reputation is partly a stereotype and is substantially false in the death penalty context, as European and American abolitionism long had more in common than is generally understood.
This Article documents how the transatlantic divergence is relatively recent. 12 For much of history, abolitionists in Europe and America converged in employing a polyvalent discourse encompassing humanistic and practical objections to capital punishment. Yet humanistic approaches toward criminal justice fell out of favor in America around the 1970s and 1980s. America then not only chose to retain the death penalty when other Western democracies cemented abolition. 13 America’s prison population also exploded, leading to the highest incarceration rate worldwide. 14 This harsher climate led U.S. abolitionism to focus narrowly on administrative, procedural, and utilitarian objections to executions. In the same period, European authorities increasingly recognized the death penalty as a human rights violation. They consequently refused to facilitate executions in America, such as by barring the extradition of detainees who might face capital punishment. 15 These circumstances fostered the misconception that humanistic objections to the death penalty are largely foreign to America and fundamentally “European” in nature.
In other words, abolitionism has historically had a humanistic component that is now commonly eclipsed in America. This may reflect diverse dimensions of American exceptionalism, the notion that America has objectively become an “exception” compared to other countries, especially Western democracies, due to singular historical and societal circumstances. 16 Extensive scholarship has focused on how, starting in the 1970s, the rise of mass incarceration and resurgence of the death penalty in the United States marked the social normalization of extraordinary harshness. 17 This profound divergence tends to overshadow the fact that America was not always an outlier.
The Article examines sources overlooked by criminal justice scholars to demonstrate how generations of American abolitionists denounced the death penalty’s inhumanity, including influential figures like Benjamin Rush, Ralph Waldo Emerson, Henry David Thoreau, Frederick Douglass, Sojourner Truth, Susan B. Anthony, Lydia Maria Child, Walt Whitman, Clarence Darrow, and Martin Luther King. 18 The Article further compares the historical evolution of abolitionism in America and France to illuminate processes of convergence and divergence. Buoyed by “sister revolutions” born of Enlightenment ideas, 19 America and France offer instructive comparisons as nations where reformers earnestly challenged the death penalty by the late eighteenth century. Given the rabid use of the guillotine during the French Revolution, it may seem hard to believe that it spurred a fervent abolitionist movement, yet it did. 20 Drawing on neglected French materials, some translated here for the first time, the Article shows that French abolitionists long held similar views to their American counterparts, as illustrated by Voltaire, Condorcet, Lafayette, Victor Hugo, Albert Camus, and Robert Badinter.
The humanistic rhetoric of past abolitionists, whether in Europe or America, foreshadowed modern conceptions of human rights and dignity. These findings call into question leading theories concluding that human rights are an invention of modernity 21 or that executions were not considered a human rights issue before a shift in Western Europe in the late twentieth century. 22 However, these theories shed light on how human rights have intensified in modernity. In particular, Franklin Zimring has insightfully documented the divergence in framing abolition as a human rights issue in Europe, compared to a practical one in America. 23 This Article’s findings suggest that the divergence that Zimring pinpointed is the present point in a longer evolution under which abolitionism largely converged for generations.
We will see that humanistic reservations about executions emerged in the Renaissance, as the writings of Thomas More, Montaigne, and Erasmus demonstrate. This normative evolution shaped Enlightenment philosophy, including Cesare Beccaria’s crucial call to abolish the death penalty in 1764, 24 which inspired reformers on both sides of the Atlantic. 25 Even though this historical evolution has not been linear, 26 it partly confirms Émile Durkheim’s sociological theory on the long-term expansion of prisoners’ rights. 27 Durkheim hypothesized that punishments gradually milden as societies evolve from absolute monarchy toward democracy. 28 Growing empathy toward prisoners is tied to an expanding norm of “human dignity,” 29 namely the intrinsic worth of human life at an abstract level. 30 As we will see, Victor Hugo, the French writer and legislator, presented a similar theory half a century earlier. 31 After centuries of incremental evolution, including backlashes and regressions, these humanistic norms have become the foundation of abolitionism in Europe. America may have taken the same path but for diverse contingencies, from social shifts toward the end of the twentieth century to the Supreme Court’s refusal to categorically abolish capital punishment under evolving standards of decency. 32
This thesis does not exclude the relevance of other factors, such as institutional differences 33 or the well-documented history of racial discrimination in the U.S. death penalty system. 34 Rather, the Article presents an original perspective on an evolution comprising far more key elements than is widely assumed.
This Part situates the Article’s thesis in contrast to leading theories on the history of the death penalty and human rights. We will notably explore how a glaring modern divergence has obscured a past convergence.
Our starting point is a pivotal book by Franklin Zimring, The Contradictions of American Capital Punishment (2003), which examined abolitionism on the opposite sides of the Atlantic. Zimring’s magnum opus stands out for offering insight into both American and European law. While European abolitionists frame the death penalty as a human rights violation, their American counterparts focus on its inutility and unfair implementation. 35 Zimring argues that this divergence reflects a recent paradigm shift in Western Europe, which did not conceive capital punishment as a human rights issue before the end of the twentieth century. 36 Until then, it was merely a matter of penal policy, rather than a “moral” or “political” question regarding “the proper limits of government power.” 37 According to Zimring, it was only after European countries had achieved abolition at the domestic level that they reframed the death penalty as a human rights issue around the 1970s and 1980s under the aegis of the Council of Europe—the most influential international body on the continent alongside the European Union. 38
Zimring emphasizes that abolitionism was generally not a reaction to the atrocities of World War II, as Allied victors executed war criminals. 39 Nor was it part of the international human rights movement born in the war’s immediate aftermath. Zimring instead identifies a shift with Protocol No. 6 to the European Convention on Human Rights. This 1983 treaty provided for the death penalty’s abolition except in wartime. 40 The reframing of abolition as an international human rights issue entailed a universalist mission under which the Council and individual European states came to support abolition throughout the continent and worldwide. 41 They consequently refused to cooperate with foreign countries seeking to apply the death penalty, including the United States, such as by denying extraditions or requests for evidence. 42 International human rights groups likewise played a role in this transformation, especially Amnesty International. 43 By contrast, whether the death penalty violates human rights “is almost never debated in the United States.” 44
In sum, Zimring theorizes that a normative shift occurred relatively recently in the 1970s and 1980s in Western Europe. 45 Despite recognizing that the Enlightenment philosopher Cesare Beccaria presented in 1764 “the first detailed and influential” call for abolition, 46 Zimring argues that the claims of Beccaria and other premodern abolitionists were distinct in nature from modern human rights claims. Stressing that “the European focus on the political nature of capital punishment has a very short history,” 47 Zimring underlines the implications of his theory: “[O]ne can be astonished that the political and human rights dimensions of the death penalty were repressed for so very long even by those who were seeking to stop executions.” 48
Another leading theory is relevant to my thesis. Samuel Moyn has argued that the human rights movement suddenly emerged in the 1970s and had practically no antecedents. 49 He denies that it was a reaction to the Holocaust and other atrocities perpetrated during World War II, as “no international rights movement emerged at the time.” 50 This is hard to reconcile with the adoption in 1948 of the Universal Declaration of Human Rights and the Convention on Genocide. Moyn equally dismisses the idea that human rights have earlier roots in Enlightenment philosophy. 51 He disputes that the American Revolution and French Revolution sowed the seeds of modern human rights, positing that their declarations of rights were narrowly circumscribed to the nation-state. 52 To Moyn, the modern human rights movement instead aims to transcend the nation-state with binding international law. Moyn thus refers to the “startling breakthrough” 53 or “true breakthrough” 54 of human rights in the 1970s, with the “breakthrough year” being 1977 when Amnesty won the Nobel Peace Prize. 55 His theory of recently and suddenly born human rights has proved controversial. 56
Even though Moyn does not discuss the death penalty or criminal justice, his theory is relevant to the history of abolitionism. If human rights as a whole did not emerge before the 1970s, capital punishment could not have been a human rights issue prior to that time. In this regard, a synergy exists between Moyn’s theory and Zimring’s theory about a recent paradigm shift on capital punishment in Europe.
This Article presents the distinct hypothesis that the death penalty’s framing as a human rights issue did not suddenly emerge in Europe in the twentieth century’s final decades. Rather, for much of history, abolitionists in both Europe and America recurrently depicted executions as the equivalent of human rights abuses. But that is not all. Abolitionists simultaneously stressed administrative, procedural, and utilitarian objections. That is because abolitionists generally employed a polyvalent discourse. Their objections sometimes encompassed moral claims akin to modern human rights arguments, sometimes practical concerns with how the penalty was applied, and oftentimes both.
How could this be? After all, a tension exists between these two framings. If the death penalty is a human rights violation, problems with its implementation become irrelevant. Because human rights are inalienable, capital punishment must then be abolished. As Zimring observes, “the debate begins and ends” with this premise about human rights. 57 As this premise lacks weight in America, including in abolitionist rhetoric, the U.S. debate instead centers on administrative, procedural, and utilitarian matters. 58
Yet the tension between these two framings is greater nowadays than in the past. That may be because human rights norms have strengthened in Europe since approximately the 1970s, the breakthrough period that both Moyn and Zimring thoughtfully describe. This enabled European abolitionists to place less weight on practical objections. But this does not signify that human rights claims were essentially absent in the past. They instead carried less weight. In societies where humanistic norms are less established, abolitionists are likely to pair human rights claims with practical objections to capital punishment as part of a polyvalent rhetoric. Once a society is prepared to fully approach the death penalty as a human rights issue, however, abolitionists may solely focus on human rights claims. Until that point, social circumstances and strategic considerations may disincentivize abolitionists from over-relying on humanistic rhetoric.
This Article suggests that the transatlantic divergence that Zimring documented is the present point of a long-term historical process. Past generations of abolitionists in America and Europe tended to converge toward a rhetoric encompassing both humanistic and practical objections to capital punishment. 59 Around the 1970s, shifts on each side of the Atlantic led to the divergence at the heart of Zimring’s theory. 60 Humanistic claims declined in America, where abolitionism increasingly focused on the unfair application and ineffectiveness of capital punishment. 61 This was partly a path dependence resulting from the Supreme Court’s landmark decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976), where most Justices refused to frame the death penalty’s constitutionality as a human rights or normative question, instead focusing on administrative, procedural, and utilitarian issues. While Furman effectively abolished the death penalty in a divisive 5–4 vote invalidating capital sentencing laws nationwide, Gregg swiftly reinstituted it four years later in a 7–2 decision licensing new statutes. 62 Coupled with retribution’s resurgence as a respectable value in America, 63 these circumstances helped shape a form of abolitionism that avoids humanistic principles and narrowly centers on practical problems: discrimination, innocence, cost, lack of deterrence, etc. Conversely, humanistic claims enjoyed a breakthrough in Europe in the 1970s and 1980s, where they supplanted practical objections to capital punishment. 64 Figure 1 conceptualizes this process of convergence and divergence.
Historical Convergence and Divergence of Abolitionist Discourse.
Human rights abolitionist claims are not the fruit of a relatively recent paradigm shift in Europe. One can find their roots in the Enlightenment, if not earlier in the Renaissance. Outside Europe, they also came to play a significant role in the United States once it became the first modern democracy to emerge from the Enlightenment. That is because erstwhile claims about the death penalty’s immorality are analogous, at times identical, to the modern human rights position, which I define as the idea that killing prisoners is fundamentally wrong and inhumane. 65 Since the eighteenth century, American and European abolitionists have frequently argued that executions are cruel, callous, barbarous, degrading or otherwise inhumane. 66 Their convictions are analogous to the modern position of the Council of Europe and European Union: “The death penalty is an affront to human dignity. It constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible.” 67
The last quoted sentence is likewise relevant in showing that it is possible to stake a staunch human rights position—and add a line about how the death penalty is ineffective and error-prone. Even in the age of human rights, European authorities employ a fairly polyvalent discourse. Still, European abolitionism has strongly gravitated toward a humanistic rationale. 68 However, the growing weight of human rights does not mean that they had no influence or did not exist in the past.
In particular, Moyn’s theory that human rights are a modern invention is partly rooted in the conflation of “human rights” with “international human rights.” It leads him to conclude that human rights did not exist before breakthroughs in international law in the 1970s. 69 This disregards how human rights can emerge in either the national or international sphere. Moyn further discounts the fact that a symbiotic relationship exists between each sphere, as capital punishment’s abolition in Europe demonstrates. Abolition started at the national level in a few jurisdictions in the eighteenth and nineteenth centuries, namely Tuscany (1786), 70 San Marino (1848), Portugal (1867), and the Netherlands (1870). 71 Abolition gradually expanded throughout the twentieth century, as illustrated by West Germany (1949), the United Kingdom (1965), and France (1981). 72 This ultimately favored the adoption of the Council of Europe’s abolitionist treaties in 1983 and 2002. 73 Both of these national and international developments favored abolition in remaining countries on the continent, especially former Soviet bloc states. 74 Abolition in international law therefore mostly stems from earlier shifts in national law. 75
Zimring has invited scholars to further explore the intriguing historical evolution in framing abolitionism, especially whether human rights “were important motivations beneath the surface of death penalty debates long before they emerged in the aftermath of abolition” in Europe. 76 That is indeed a dimension of my thesis, which further suggests that abolitionism largely converged in America and Europe until approximately the 1970s, when the divergence that Zimring describes materialized. We will see how it is the present point of a long-term historical process.
This Part will describe the gradual emergence of abolitionism in the Renaissance and Enlightenment. In these epochs one can find roots of the modern human rights discourse that capital punishment is immoral and of the practical discourse that it is ineffective or unfairly implemented. Today, the former position has become the ground for abolition in Europe, whereas the latter characterizes American abolitionism. This divergence is largely a modern development. Past reformers recurrently denounced both moral and practical problems with the death penalty.
As early as the Renaissance, philosophers began drawing closer to the idea that human worth is inalienable and cannot be forfeited by committing a crime. 77 While Beccaria is arguably the first prominent abolitionist, this Part documents how earlier thinkers who did not call for outright abolition (e.g., Thomas More, Erasmus, Montaigne, Montesquieu, etc.) expressed concerns about the cruelty of executions and sought to limit them to a narrower range of crimes. This ultimately paved the way for full abolition on human rights grounds in Europe—the fruit of a long-term historical process encompassing “a reduced range of capital offenses and eligible offenders,” a “decline in the frequency of executions,” and “the appearance of sharp divisions in public attitudes towards the penalty’s propriety.” 78 The gradual elimination of the death penalty is itself part of a wider evolution that began with the denunciation, limitation, and abolition of torture, mutilation, and other corporal punishments. 79 Durkheim suggested that as societies evolved away from absolute monarchy toward democracy, ruthless punishments would become acts of “lese humanity,” a reformulation of lese majesty. 80 His theory on the gradual mildening of punishments helps us conceptualize this long-term evolution. 81
The Enlightenment engendered a reformative spirit in criminal justice. Cesare Beccaria, a Milanese philosopher, was the main catalyst for this paradigm shift. His masterpiece, On Crimes and Punishments (1764), was the first influential call to abolish the death penalty. Its argumentation was polyvalent, conciliating humanistic and utilitarian rationales. Depicting the death penalty as state murder, “a public assassination,” 82 he indignantly asked: “By what alleged right can men slaughter their fellows?” 83 Beccaria combined these normative objections with practical concerns: “Capital punishment is not useful because of the example of cruelty it gives to men.” 84 He equally stressed its lack of deterrent value and discrimination against the indigent. 85 “Who made these laws? Rich and powerful men who have never deigned visit the squalid huts of the poor . . . let us attack injustice at its source,” Beccaria proclaimed. 86 The following statement encapsulates his multifaceted discourse: “If I can demonstrate that capital punishment is neither useful nor necessary . . . I shall have vindicated the cause of humanity.” 87
Beccaria planted seeds of the modern abolitionist discourse on each side of the Atlantic. His practical objections about the inutility and inequity of capital punishment have become a staple of American abolitionism. His denunciation of its inhumanity is at the root of the human rights rationale in modern Europe.
Beccaria was not a full abolitionist, as he supported executions for treason posing a risk of security to the state. 88 His views may appear callous by modern standards, insofar as his alternative to death was lifelong forced labor. 89 Nevertheless, he favored milder and more humane sentences overall. 90
Yet a normative evolution was already underway before On Crimes and Punishments. Although Beccaria (1738–1794) is justly recognized as the trailblazer of modern criminal justice, his ideas did not arise ex nihilo, as his reliance on Montesquieu (1689–1755) demonstrates. Beccaria was keen on “follow[ing] the shining footsteps of this great man.” 91 In fact, humanistic sensibilities toward punishment were already palpable in the views of diverse Renaissance philosophers two centuries before Montesquieu.
We begin our overview of this historical evolution with Thomas More (1478–1535), the English statesman and thinker, given his substantive arguments and rhetorical approach. In his Utopia (1516), More depicted a fictional world where capital punishment was largely phased out for heinous crimes, and replaced with forced labor offering hope for rehabilitation. 92
A key passage of More’s tale portrays an obtuse royal counselor astonished that thieves proliferate in Britain despite being routinely executed. A traveler who returned from an imaginary utopia rebukes him: “[N]o need to wonder: this way of punishing thieves goes beyond the call of justice, and is not in any case for the public good. The penalty is too harsh in itself [and] isn’t an effective deterrent.” 93 Although Utopia is at times ambiguous, 94 it suggests that a fair society should address root causes of crime, such as poverty, rather than inflict harsh punishments. 95 Crime is a symptom of wider ills. This focus on social and institutional mechanisms fostering crime, as opposed to essentialism about human nature or evildoers, was innovative in More’s epoch. 96 It ultimately evolved into a premise of modern human rights norms: people who commit heinous crimes are not inherently evil and should not face dehumanizing punishments. Naturally, one should be wary of anachronisms. A modern reader would be quick to find More’s outlook antiquated and rife with contradictions, such as his participation in the burning of heretics. 97 More would himself fall victim to the death penalty: Henry VIII had him beheaded for insubordination. Nevertheless, Utopia remains a significant text in the history of Western civilization.
Utopia demonstrates that polyvalent rhetoric urging the abolition or limitation of capital punishment has distant roots. As a Renaissance humanist, Thomas More was trained in classical rhetoric encompassing the honestas and utilitas principles, namely honor and utility. Rhetoricians commonly argued that a particular course of action would be either dishonorable or ineffective. Their strongest position would lie in establishing both. 98 To More, “honor and expediency point in the same direction . . . . The English policy for dealing with theft is both immoral and self-defeating.” 99 This helps us understand why skillful rhetoricians in the Renaissance and Enlightenment would not merely contend that the death penalty was inhumane or ineffective in a particular case or in general. They would argue both polyvalently.
The perspective of another leading voice of the Renaissance demonstrates the emergence of humanistic sensibilities foreshadowing modern human rights claims against capital punishment. Montaigne (1533–1592) expressed his revulsion of executions as a magistrate: “[W]hen occasions have summoned me to sentencing criminals, I have tended to fall short of justice . . . . horror of the first murder makes me fear a second, and hatred of the first cruelty makes me hate any imitation of it.” 100 Montaigne drew on Antiquity to offer ethos to his humane vision of justice: “They say that Aristotle was reproached for having been too merciful to a wicked man. ‘In truth,’ he said, ‘I was merciful to the man, not to the wickedness.’” 101 Montaigne pinpointed a conception of justice that has become prevalent in modernity: the distinction between the crime and the criminal or, better yet, the crime and the individual, who should not be essentialized as a “criminal.” The notion that people should not be reduced to their worse act is omnipresent in modern human rights, bolstering the norm that punishment should never degrade the offender whose dignity is inalienable. 102
Elsewhere in his Essays, Montaigne adopts a more utilitarian approach suggesting that incapacitation and deterrence justify the death penalty: “[Offenders] are condemned so that they may not do the same wrong again, or so that others may avoid the example of their wrongdoing.” 103 His moral sensibilities nonetheless leaned toward mercy. He thus found corporal punishments inhumane: “[E]ven in justice, all that goes beyond plain death seems to me pure cruelty . . . .” 104 Montaigne’s words troubled Roman censors—defenders of the status quo—who flagged this passage of the Essays. 105 Another section of the Essays calls for limiting the scope of capital punishment, for example by replacing it with public shaming for dishonorable offenses like desertion. 106 In passing, Montaigne then refers to freedom of conscience and “the opinion of those who condemn capital punishment for heretics and unbelievers.” 107 That line may be interpreted as merely restating others’ views without endorsement, perhaps for self-protection. Roman censors flagged this veiled suggestion, too. 108
Ultimately, Montaigne embodies the emerging paradigm shift toward more humanistic sensibilities. He proclaimed: “I sympathize very tenderly with the afflictions of others” 109 and “I cruelly hate cruelty, both by nature and by judgment, as the extreme of all vices.” 110 Montaigne tellingly added: “Even the executions of the law, however reasonable they may be, I cannot witness with a steady gaze.” 111
Erasmus (c. 1469–1536), perhaps the most influential figure of the Renaissance, similarly expressed sensibilities suggesting that a normative evolution was underway before the Enlightenment. While he did not go as far as Montaigne, the Dutch philosopher expressed reticence toward executions, even as he recognized their necessity for deterrence and incapacitation. “To persuade men not to break the law, you must first use reasoned arguments, then, as a deterrent, the fear of divine vengeance against criminals, and in addition threats of punishment,” he observed in The Education of a Christian Prince (1516). “If these are ineffective, you must resort to punishment, but of a comparatively light kind, more to cure the disease than to kill the patient.” 112 Should this fail, Erasmus endorsed the death penalty to preserve social order, likening the criminal to “a limb” that must be “cut” from the body to protect its health. Despite this gruesome analogy, Erasmus insisted that rulers should do so “reluctantly” and “try all other remedies before resorting to capital punishment.” 113 The man known as “the Prince of the Humanists” was urging relatively limited use of the death penalty based on both humanistic and practical concerns two centuries prior to Beccaria.
Reformers struggled against the status quo, as the death penalty tended to be socially accepted throughout the Renaissance and Enlightenment. 114 In the landmark Encyclopédie by Diderot and D’Alembert, a vast repository of mid-eighteenth–century knowledge, one finds the following passage: “It is doubtless that real sorcerers deserve death, and that even those who are only so by imagination must not be regarded as innocent . . . .” The article adds that it would be preferable to leave sorcerers unpunished, lest one admit their supernatural powers and reinforce superstition. Society should instead treat them as “madmen.” 115 More prosaically, the entry on “criminal law” states that “the law of death against an assassin is very just” in fostering public safety, although it would usually be excessive for theft. 116 Another entry posits that corporal punishments or torture may be legitimate because “there are a large number of cases where hope for reform [of the culprit] is lacking, and where the sentence could be extended until the final torment.” 117 Yet the Encyclopédie had diverse contributors and lacked a uniform position on criminal punishment, 118 as illustrated by entries stating that “[t]he best jurisconsults have even regarded lex talionis as a barbaric law, contrary to natural law” 119 or that corporal punishments are “barbarous” and “cruel.” 120 For our purposes, the Encyclopédie assumes the justification of some executions, which is revealing since it represented the views of leading thinkers.
The growing tide against capital punishment is more palpable in the Supplement to the Encyclopédie published in 1776 under Jean-Baptiste Robinet’s stewardship. 121 In the “assassination” entry, an anonymous author describes the use of capital punishment in diverse societies, before seeking another way as “a friend of humanity.” Other societies have preferred to banish, ostracize, dispossess, or fine murderers while “respecting their lives,” the author observes approvingly, adding that they feared offending God by killing wrongdoers. 122 Besides contending that the death penalty is inhumane vengeance, the Supplement foreshadows the right to life in modern human rights law. 123 Indeed, the anonymous philosopher disputes that a murderer forfeits “all rights he may have on his own life.” This humanistic claim is supplemented by a utilitarian one: even if the murderer could forfeit this right to life, “it would still remain to be seen whether the interest of society would be served” by executing him. 124
Insofar as the Supplement espoused abolition and distanced itself from the initial Encyclopédie, the anonymity of its “assassination” entry is intriguing. But it does not permit us to conclude that its author was Diderot, the most prominent philosopher associated with the Encyclopédie, despite speculation to this effect. 125 Although Beccaria’s On Crimes and Punishments enthused Diderot, just as fellow encyclopédistes, he deemed executions necessary unless lifelong forced labor proved a better deterrent. 126 Diderot’s reasoning did not reflect empathy. Rather, he exposed contradictions in the sensibilities of Beccaria, who had denounced the cruelty of executions before lauding the cruelty of lifelong forced labor as an alternative: “I observe that [Beccaria] abandons, with reason, his principle of mildness and humanity toward the criminal.” 127 Diderot equally signaled support for retribution in contending that it is “natural that the laws have ordered the murder of the murderer.” 128 His perspective was largely rooted in Rousseau’s view that the social contract empowers the state to execute wrongdoers. 129
In The Social Contract (1762), Rousseau nonetheless expressed ambivalence about the death penalty. 130 At the outset he argued that it may be necessary to preserve order. To avoid becoming “the victim of an assassin,” the Swiss philosopher wrote, “one consents to die if one becomes an assassin.” 131 Conversely, Beccaria framed capital punishment as “a war of the nation against a citizen” who never granted the state the power to someday take his life. 132 But it would be a mistake to reduce the divergence between Beccaria and Rousseau to one between an abolitionist and a retentionist. Both converged in expressing moral reservations about the death penalty and calling for its limitation. Indeed, in the aforesaid passage Rousseau hastened to add that “frequent harsh punishments are a sign of weakness or laziness in the government. There is not a single wicked man who could not be made good for something. One only has the right to put to death, even as an example, someone who cannot be preserved without danger.” 133 Rousseau thus conciliated humanistic and utilitarian arguments in a polyvalent analysis: the death penalty is inhumane, except if incapacitation is impossible.
The Encyclopédie also captures the weight of Montesquieu’s influence by reprising his justification of execution as “a punishment founded on reason, and drawn from the very source of good and evil,” which is “the remedy, as it were, of a sick society.” 134 This passage should not eclipse how Montesquieu helped steer a paradigm shift. Montesquieu was not an abolitionist but he emphatically called for milder punishments, thereby inspiring Beccaria and other reformers. 135 In The Spirit of the Laws, Montesquieu proclaimed that “[t]he severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or republic, whose spring is honour and virtue.” 136 Montesquieu proposed a norm that has become a foundation of modern justice—“proportion in punishments.” 137 “It is a great abuse among us to condemn to the same punishment a person that only robs on the highway and another who robs and murders,” he underscored. 138
Furthermore, Montesquieu’s humanistic sensibilities led him to encourage rulers to spare wrongdoers’ lives: “So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity at displaying it; which in this part of the world is seldom wanting.” 139 Providing diverse historical examples, he cautioned against executions: “The Emperor Maurice made a resolution never to spill the blood of his subjects . . . . Isaac Angelus took an oath that no one should be put to death during his reign.” 140
Montesquieu equally denounced the inhumanity and inutility of torture, demanding its abolition: “So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states . . . but Nature cries out aloud, and asserts her rights.” 141
The Spirit of the Laws is a prefiguration of Beccaria’s polyvalent abolitionist rhetoric. “Mankind must not be governed with too much severity,” Montesquieu explained, adding that wrongdoing “proceed[s] from the impunity of criminals, and not from the moderation of punishments.” 142 In the same passage he offers thoughts on deterrence. 143 While Montesquieu does not urge abolishing capital punishment, unlike torture, he finds it inhumane to execute wrongdoers in many instances, just as it is ineffective.
Once Beccaria made his plea for abolition in 1764, he caught the eye of another beacon of the Enlightenment. Voltaire crafted a lengthy commentary to the French translation of On Crimes and Punishments. Hoping that Beccaria’s treatise “might soften the barbarities that linger in the jurisprudence of so many nations,” 144 Voltaire began by evoking the predicament of an indigent woman condemned to die for abandoning her newborn. “[D]oes the death of the child justify the death of the mother?” Voltaire protested that “where charity is lacking, the law is always cruel.” “True jurisprudence aims to prevent the crimes,” not to repress them harshly. 145
Employing a polyvalent rhetoric, Voltaire called for a paradigm shift to end cruel punishments, while marshaling administrative, procedural, and utilitarian concerns. In particular, he proposed humane norms to reframe criminal law: vengeful retribution is an illegitimate justification for punishment; 146 the sentence must be proportional to culpability; 147 youth is a mitigating circumstance; 148 and when the law is ambiguous “the judge should pass the mildest punishment without any hesitation, because he is a man,” 149 which in modern language means “because he is human.” Voltaire’s vision encompassed procedural fairness, too, as he stressed that the accused should have a chance to defend themselves, including with counsel, and that exonerated innocents should receive reparations. 150 Like Beccaria, 151 Voltaire recommended lifelong forced labor as an alternative to death, given its greater utility to the state. 152 This utilitarian approach equally led Voltaire to suggest that executions may be counterproductive, as “a severe law sometimes produces crimes,” 153 or useless, because in countries implementing alternatives “[c]rimes did not increase as a consequence of this humane approach.” 154 For analogous reasons, Voltaire excoriated torture and corporal punishments. 155
Voltaire’s commentary did not express categorical opposition to capital punishment, leaving doubt about his ultimate conclusion, but denounced its cruelty and called for radically limiting its use: “[H]umanity, which is stronger than the law, should spare the life of those for whom the law itself has ordained death.” 156
A decade after his commentary on Beccaria’s treatise, Voltaire took a more overtly abolitionist position. He organized a competition offering a monetary prize for the best draft legislation on criminal law, procedure, and evidence. 157 The philosopher accompanied the competition announcement with more reflections on humane and utilitarian justice, including “proportional” punishments that would blend “mildness” and “swiftness” for the benefit of “liberty and humanity.” 158 Disapproving the adage of an eye for an eye, he noted that executing a murderer will never bring a victim back. 159 Voltaire urged competitors to consider Beccaria’s abolitionist plea and assess “whether it is indeed reasonable that magistrates commit homicide to teach men to hate homicide.” 160 In Voltaire’s eyes incapacitation might be the lone justification for an execution if no alternative is available, thereby taking the life of a “rabid dog” to “save the life of the greater number.” 161 Still, Voltaire ended his pamphlet by urging rulers to treat criminals in the same way as Louis XVI, then the King of France, treated military deserters—by sparing their lives and enabling them to make amends. 162 The law should not search for “pretexts to spill blood.” 163
Overall, the prior sources show that a polyvalent abolitionist discourse had emerged by the late eighteenth century. Beccaria is the main archetype of this rhetoric. We saw that his humanistic sensibilities and calls for reform reflected a broader normative shift that had already emerged several generations earlier in the Renaissance and Enlightenment, as the writings of Erasmus, Thomas More, Montaigne, and Montesquieu demonstrate. This discourse did not merely comprise concerns about the death penalty’s ineffectiveness and unfair implementation. Philosophers equally marshaled moral and political objections to its inhumanity, cruelty, and impropriety—arguments akin to modern human rights abolitionism. Even though they did not demand outright abolition, Beccaria’s predecessors contributed to the abolitionist movement’s rise by demanding restrictions on capital punishment. In calling for abolition, Beccaria in turn influenced Voltaire, possibly the Supplement to the Encyclopédie, 164 just as he would influence America’s Founding Fathers, 165 French revolutionaries, 166 and beyond.
But how did this evolution in philosophical thought translate into concrete legal change? In 1765, Leopold II—then the Grand Duke of Tuscany and subsequently the Holy Roman Emperor—began applying Beccaria’s theory and granting clemency to all those sentenced to death in Tuscany. As Tuscany abolished capital punishment in 1786, Leopold declared: “It is with the greatest satisfaction for our paternal sentiments that we noticed that the mildening of punishments, combined with a fine attention in punishing crimes . . . had considerably diminished the lesser ones and made rare those of an odious nature.” 167 In 1787, his brother Joseph II abolished the death penalty in Austria save for treason. 168 Recalling how the path to abolition is not linear, Tuscany later reintroduced capital punishment but seldom applied it 169 before Italy joined the abolitionist camp in 1947. 170 Yet Beccaria’s ideas would resound far beyond Italy.
This Part examines the evolution of American abolitionism from the Enlightenment to Furman v. Georgia, the landmark 1972 Supreme Court decision that temporarily abolished capital punishment. 171 We will see how generations of American reformers followed in Beccaria’s footsteps by presenting a multifaceted critique of capital punishment’s immorality, inequity, and inutility. While humanistic claims are associated with modern European abolitionism, they actually played a significant role in the United States until the post-Furman era. This historical evidence further demonstrates that framing the death penalty as a violation of human rights and dignity is not a modern development. 172 Rather, the main modern transformation lies in how these norms have become the official basis for abolition in Europe, following a long battle by abolitionists. 173
Before its breakthrough in modern Europe, abolitionism initially made headway in the first democracy born of Enlightenment ideas: the United States. Its foundation enabled the concrete application of Enlightenment principles, although it would be a mistake to imagine American reformers unimaginatively implementing European philosophers’ views. The American Enlightenment was a period of vibrant intellectual life and innovation transcending European thought. 174 It encompassed a tendency toward “mildness” and “sentimental humanism” in criminal punishment. 175 The first “proto-prisons” aiming to rehabilitate offenders thus emerged in America in the 1780s and 1790s. 176 In this period “the propriety of capital punishment for any crime, even murder, was a bitterly contested issue,” as Stuart Banner describes. 177 This partly reflected the influence of Beccaria, whom the Founding Fathers and contemporary Americans widely read. 178
“[R]ising political figures, such as James Madison and the future governor of New York DeWitt Clinton, favored abandoning capital punishment altogether. Others, such as Thomas Jefferson and Benjamin Franklin, advocated eliminating the death penalty for all crimes other than murder,” Banner notes. 179 The Founding Father Benjamin Rush, a leading abolitionist, framed his position in both normative and practical terms, stressing “[h]umanity and reason.” 180 The focus on the root social causes of crime, prefigured centuries earlier in Thomas More’s Utopia, 181 gained traction during the American Enlightenment. The notion that wrongdoers were not inherently evil buoyed Rush and fellow abolitionists, who demanded that laws punish both more humanely and effectively. 182
In the final decades of the eighteenth century, reformers in diverse American states therefore sought to limit the death penalty. By 1798, five states had abolished it for all crimes besides murder. 183 Even if they did not demand full abolition, reformers commonly found broad use of capital punishment “barbaric” or “sanguinary.” 184 The humanistic outlook of those who urged downright abolition is inferable from accusations portraying them as naively “sentimental” and “soft,” if not “feminine,” for empathizing with criminals. 185 Empathy was not strictly limited to abolitionist circles. As in contemporary France, 186 the automatic death penalty for certain crimes periodically led American juries to acquit defendants out of sympathy. 187 As Banner explains, “much of the motivation for the invention of the prison arose from the growing distaste for executing burglars, robbers, rapists, and the like.” 188
In 1847, this gradual humanistic and utilitarian evolution led Michigan to abolish capital punishment, where it has never been reintroduced. 189 Few executions were documented in this region beforehand. 190 A legislative committee had recommended abolition, insisting that “no man hath the power to destroy life but by commission from God.” It added that executions slow the legal process, are irreversible, and could kill innocents. 191
Sojourner Truth and fellow Michigan abolitionists subsequently militated against attempts to reestablish capital punishment. Truth, a former slave who became a key figure of movements for the emancipation of black people and women, had settled in Michigan. In 1881, she appeared before its legislature and said a movement to reintroduce the death penalty “shocked me worse than slavery.” Deeming any execution state murder, she proclaimed: “When a man kills another in cold blood, and you hang him, then you murder in cold blood also . . . . I am against it!” According to Truth, executions outrage principles of Christian compassion. 192 Furthermore, in 1891, Thomas M. Cooley, a prominent Michigan judge and academic, specified that “the fundamental objection” expressed against capital punishment was normative, namely “the sacredness of life” and the bad example of a government that kills “without fear or horror.” 193 The situation of Michigan illustrates how nineteenth-century American abolitionists did not merely present practical or utilitarian objections to capital punishment, as many insisted on its inhumanity in terms foreshadowing the right to life in modern conceptions of human rights and dignity.
Wisconsin abolished capital punishment in 1853. 194 A journalist who observed the legislative hearings reported that the debate had a moral dimension. He personally deplored the “barbarities” of capital punishment, calling instead for “brotherhood” and “love.” 195 Administrative problems also spurred reform, including alleged ethnic bias, followed by a botched hanging, in the prominent case of John McCaffary, an Irish immigrant. 196 Administrative troubles likewise proved influential when Maine abolished capital punishment in 1887. In the run-up to reform, the execution of a black man, Clifton Harris, led to public outcry over discrimination. Evidence additionally suggested his innocence. Analogous problems surrounded the execution of Louis F.H. Wagner, a Prussian immigrant who vowed his innocence. Multiple botched hangings compounded these worries. 197 Certain Maine abolitionists nonetheless blended practical concerns with normative ones, such as Tobias Purrington who labeled executions useless “vengeance.” 198
Hence, reformers employed a polyvalent rhetoric in the three states leading American abolitionism in the nineteenth century: Michigan, Wisconsin, and Maine. Abolitionists did not oppose capital punishment solely because of administrative, procedural, and utilitarian concerns. Much like European contemporaries, 199 they also condemned its immorality, cruelty, and inhumanity. 200 This humanistic dimension reflected a wider context, as the norm of “sympathy” played a key role in nineteenth-century U.S. reform movements, from abolishing slavery and capital punishment to uplifting the working class. 201 A survey of America’s intellectual debate in this period supports this conclusion.
Ralph Waldo Emerson was an abolitionist. He associated capital punishment with retrograde institutions such as monarchy and feudalism. 202 In 1867, Emerson optimistically proclaimed that “this country and this age belong to the most liberal persuasion.” His conception of progress comprised “the abolition of capital punishment, and of imprisonment for debt; the improvement of prisons,” among other ambitious reforms. 203 In another lecture, Emerson backed the abolition of the death penalty and of “legal cruelties in the penal code,” but lamented that politicians lacked the moral character and vision to achieve idealistic social changes. 204 Even though the Transcendentalist movement hardly focused on capital punishment, it usually sympathized with abolition, in the image of Emerson. 205
Henry David Thoreau, Emerson’s peer, shared this sensibility. Thoreau famously denounced the hanging of John Brown, the anti-slavery rebel, but this plea does not tell us his views on executions in general. 206 More revealingly, Thoreau signed an 1849 petition protesting an execution in moral terms, casting it as “a crime in which we would under no circumstances participate, which we would prevent if possible and in the guilt of which we will not by the seeming assent of silence, suffer ourselves to be implicated.” 207 The condemned was a black man, and this likewise appeared to motivate Thoreau’s position, given his concerns about racial injustice. 208 His interest in the issue may have arisen at a young age, as he participated in a debate on abolition as a Harvard student. 209 “[T]he gallows bear an ill name, and I think deservedly,” he wrote later in life, expressing concern about the hanging of “many an innocent man.” “The days of the gallows are numbered,” he weighed, before alluding to “morbidly curious persons” who watch executions. 210
Frederick Douglass, arguably the foremost African-American leader of the nineteenth century, identified the death penalty as a violation of “human rights.” 211 Speaking on behalf of a group of abolitionists in Rochester, New York, Douglass evoked the right to life in modern European abolitionism by declaring: “[L]ife is the great primary and most precious and comprehensive of all human rights—that whether it be coupled with virtue, honor, or happiness, or with sin, disgrace and misery [it may not be] voluntarily destroyed [by] Government.” Douglass expressed a religious conviction akin to the idea of inalienable human dignity, calling life “a right derived solely and directly from God,” to wit the most “inviolable of all his gifts.” 212 Tellingly, Douglass did not focus these resolutions on the death penalty’s racist application but on humanistic grounds.
Douglass was not alone in defending a twofold abolitionism—of slavery and capital punishment. Although not all opponents of slavery held this sentiment, anti-slavery newspapers commonly depicted enslaving and executing human beings as brutal tyranny. 213 Other leading figures defended this dual abolitionism, including Wendell Phillips, 214 William Lloyd Garrison, Henry Wadsworth Longfellow, and Lydia Maria Child, who considered hangings anti-republican and unchristian. 215 Philipps notably applauded Michigan’s abolition and felt that doing so nationwide would honor “civilization and Christianity.” 216 As for Child, among the most influential women thinkers of her age, she expressed widely circulated thoughts on the gallows and the harsh predicament of the poor. 217 To Child, capital punishment was “savage,” “barbarous,” “ignominious,” a “legalized murder, in cold blood,” inflicting “cruelty” for hollow “vengeance.” 218 She witnessed the “disappointed rage” of a New York crowd that “felt cheated of a [public] hanging,” because the condemned had committed suicide in his cell. 219 Again evoking the right to life in modern human rights abolitionism, Child stressed: “To me, human life seems so sacred a thing, that its violent termination always fills me with horror . . . whether done contrary to law and custom, or according to law and custom.” 220 However, Child’s fundamentally humanistic, religious, and political opposition to capital punishment did not preclude her from expressing administrative and utilitarian concerns. She thus decried “the danger of convicting the innocent” based on “precarious” evidence. 221 She excoriated arbitrariness, since juries spared the lives of many offenders. Child added that executions foster crime by teaching violence and—implicitly channeling Beccaria and European abolitionism—underlined that “testimony from all parts of the world is invariable and conclusive, that crime diminishes in proportion to the mildness of the laws.” 222
Several leaders of the contemporary women’s rights movement likewise stood against capital punishment. 223 Susan B. Anthony joined Frederick Douglass at the aforesaid Rochester anti-death penalty meeting in 1858. 224 The suffragist Ida Husted Harper, whom Anthony entrusted as her biographer, described the position of Anthony and her peers regarding this hanging for homicide: “It was not that they doubted the [defendant’s] guilt . . . they were opposed to the principle of what they termed judicial murder.” 225 Elizabeth Cady Stanton, who led the National Woman Suffrage Association from 1869 to 1890, found executions dehumanizing. “It makes me shudder to think of the cruelties that are inflicted upon criminals in the name of justice,” she deplored, labeling capital punishment “a relic of barbarism” and the gallows an instrument of “torture.” 226
A magisterial study by John Cyril Barton offers other innumerable examples of nineteenth-century American authors decrying the death penalty’s cruelty and immorality. Their stance reflected “the Enlightenment ideal of a less severe, more proportional government” and “a republican disdain for the so-called ‘right’ of a state to take its citizens’ lives.” Embodying this reformative spirit, works of literature called for limiting capital punishment or abolishing it altogether. 227 In 1834, an essay under the pen name Humanity proclaimed, “I am opposed to all executions, for crime, and especially to those which are made public.” 228 Barton explains that this statement “was far from radical for the period,” as “[i]nfluential legislators and politicians, as well as prominent reformers, ministers, and writers, made such declarations.” 229
Humanity’s essay prefaced a book that was among the favorites of Nathaniel Hawthorne. 230 According to Barton, evidence suggests that Hawthorne supported capital punishment, despite reservations. 231 But multiple other writers matched Humanity in repudiating this practice. For instance, John Neal, whose popular novel Logan (1822) featured hanging scenes, like many contemporary novels, 232 expressed abolitionist convictions. Neal did not believe “in the wisdom of strangulation, for men, women, and children, however much they might seem to deserve it,” adding that “the worst men have most need of repentance, and that they who are unfit to live, are more unfit to die.” 233
Walt Whitman, another prominent voice of the age, denounced the cruelty, inutility, and inequity of capital punishment. 234 Despite urging empathy for crime victims, he was accused of naïve womanliness for being sentimental toward convicts. Co-opting these charges, he affirmed that sympathy reflected true religion. 235 When Whitman claimed “we forget that [the criminal] is still a duplicate of the humanity that stays in us all,” 236 his rhetoric embodied Durkheim’s aforesaid theory of penal mildness: “What concerns man concerns us all; because we are all men. The feelings protecting human dignity thus are personally dear to us.” 237 Whitman contended that, “to a person of large mind, principles are regarded in their application to the widest humanity.” Decrying the gallows—“Monstrous!”—he impugned partisans of “legal strangulation.” 238
A co-founder of the Brooklyn Association for the Abolition of the Death Penalty, Whitman reasoned that all citizens in a democracy are responsible for an execution by their government. 239 A contemporary Universalist pastor similarly qualified executions as state murders perpetrated in citizens’ name. Certain U.S. abolitionists associated capital punishment with omnipotent European monarchies that callously eliminated their citizens. 240 A generation earlier, Benjamin Rush had proclaimed that “[c]apital punishments are the natural offspring of monarchical governments,” whereas republican governments “appreciate human life” and are capable of being “merciful.” “An execution in a republic is like a human sacrifice in a religion,” Rush stressed. 241 From this angle, a sphere of individual rights protects citizens from their government. This rationale is analogous to the modern principle that, irrespective of their wrongdoing, prisoners possess inalienable human rights, including the right to life. 242
The U.S. social debate would continue to evolve as the country marched toward modernity. By the late nineteenth century, abolitionists stopped insisting on certain religious claims, such as “the Sixth Commandment (‘Thou shall not kill’) and God’s prohibition on Cain’s execution for fratricide.” They instead leaned toward “theories of biological or environmental determinism informed by new scientific and sociological approaches to criminal behavior,” including statistical data. 243
Overall, nineteenth-century American death penalty debates prove both distant and familiar. Certain facets appear dated, like the weight of phrenology, a pseudoscience imputing criminality to the shape of people’s skulls. 244 At the same time, many statements for or against the death penalty in this epoch could have been written today, such as those urging mercy or retribution. 245 While we should be wary of anachronisms, we should simultaneously avoid the fallacious assumption that modern controversies are entirely new. Besides, even obsolete aspects of the nineteenth-century debate have modern analogues. Phrenology stands repudiated, yet the science of the mind remains prominent in modern capital trials, as the role of psychiatric experts demonstrates. 246 Biblical verses are not as omnipresent as they were yesteryear, 247 but religious faith remains a factor in shaping attitudes toward the death penalty in a nation that remains highly devout, particularly in the South, the “Death Belt.” 248
As America entered the twentieth century, Clarence Darrow issued a clarion call, revealing a continuity with nineteenth-century abolitionism. One of the most prominent lawyers in U.S. history, Darrow published a novel titled an Eye for an Eye (1905) casting executions as premeditated murders. 249 In a public debate a few decades later, Darrow labeled execution a “horrible” punishment and stressed: “I would hate to live in a state that I didn’t think was better than a murderer.” 250 The renowned orator deployed a polyvalent rhetoric in condemning the death penalty: “I am against it because I believe it is inhuman, because I believe that as the hearts of men have softened they have gradually gotten rid of brutal punishment, . . . because I believe that it has no effect whatever to stop murder.” 251 Darrow’s position again confirms that American abolitionists embraced arguments akin to modern human rights norms centering on the immorality of capital punishment: “If a State wishes that its citizens respect human life, then the State should stop killing;” 252 “Every human being that believes in capital punishment loves killing, and the only reason they believe in capital punishment is because they get a kick out of it;” 253 “In the end, this question is simply one of the humane feelings against the brutal feelings.” 254 Darrow’s statements further evoke how the death penalty inherently presents normative questions, even though they are often repressed in the modern American psyche given the emphasis on practical problems surrounding capital punishment. 255
Fellow reformers maintained a multifaceted discourse, as illustrated by how a sociopolitical magazine in Darrow’s time cited data on executions’ lack of deterrence. For good measure, it added that executions are “anachronistic” and that abolition would benefit “humanity.” 256
Meanwhile race crystallized as a significant dimension of America’s death penalty debate, 257 as it stymied the public’s capacity to identify with countless prisoners at a human level. This was powerfully captured in Richard Wright’s 1940 novel, Native Son, when whites dehumanize the antihero Bigger Thomas, an indigent black man charged with murder and rape: “All in all, he seems a beast utterly untouched by the softening influences of modern civilization . . . . [Experience] with such depraved types of Negroes has shown that only the death penalty, inflicted in a public and dramatic manner, has any influence upon their peculiar mentality.” 258
A few decades later, another influential American voice condemned the inhumanity, racism, and ineffectiveness of state killing. “Since the purpose of jailing a criminal is that of reformation rather than retribution . . . it is highly inconsistent to take the life of a criminal,” Martin Luther King, Jr. argued. “Capital punishment is against the best judgment of modern criminology and, above all, against the highest expression of love in the nature of God.” 259 On another occasion, King protested Alabama’s discriminatory execution of a black juvenile for allegedly raping a white woman. King then appealed to “human dignity” and suggested that the juvenile’s potential innocence should not obscure fundamental moral objections to capital punishment. 260
In practice, however, the stances of Darrow, King, and fellow abolitionists seldom reflected majority opinion, which impeded reform. Abolition nonetheless advanced under the Progressive movement in the late nineteenth and early twentieth centuries. Ten states passed it between 1897 and 1917, although eight reintroduced capital punishment by the end of the 1930s. 261 The number of abolitionist states would stagnate, reaching a dozen by 1972. 262 And the number of state executions gradually plummeted from 1,523 in the 1930s to 192 in the 1960s. 263 This might have been due less to a societal rejection of capital punishment than to the U.S. Supreme Court’s growing willingness to regulate its administration. 264 Still, polls showed declining support. 265 By 1972, a polyvalent abolitionist discourse had entered the Democratic Party Platform, which underlined the death penalty’s cruelty, inequity, and uselessness: “We believe that the quality of justice will be enhanced by: . . . Abolishing capital punishment, recognized as an ineffective deterrent to crime, unequally applied and cruel and excessive punishment.” 266 The California Supreme Court also adopted a multifaceted reasoning in its landmark decision abolishing capital punishment under the state constitution, concluding “it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance.” 267
Finally, or so it seemed, the U.S. Supreme Court abolished the death penalty in Furman v. Georgia (1972). 268 Furman was a testament to the advocacy of Anthony Amsterdam, the foremost American abolitionist in the 1960s and 1970s. Known as one of the most outstanding lawyers in U.S. history, Amsterdam headed the anti-death penalty unit at the NAACP LDF (National Association for the Advancement of Colored People Legal Defense Fund). 269 Justice Byron White would recall Amsterdam’s performance in Furman as the best oral argument he had ever witnessed. 270
The historical evolution of American abolitionism until that point was reflected in the briefs that Amsterdam filed in the Furman litigation. As discussed in detail elsewhere, 271 the leading brief was the one in Aikens v. California, a mostly forgotten companion case that became moot, leaving Furman as the main case standing before the Court. 272 While Amsterdam had marshaled numerous administrative claims against the death penalty, especially in prior legal challenges, 273 the Aikens brief emphasized that “the principal arguments urged to support its abolition have always been humanistic, and concerned with fundamental human decency.” 274 Aikens-Furman was fundamentally a challenge to “evolving standards of decency,” the benchmark to interpret the Eighth Amendment. 275
When the Supreme Court delivered its historic Furman decision, experts thought that America had firmly entered the abolitionist camp. 276 Instead, the Justices soon reauthorized executions in Gregg v. Georgia (1976). 277 Today, America is the only retentionist Western democracy. European law has notably concluded that any execution is a human rights violation. We will later return to Furman and how the American debate evolved in its aftermath. 278
At this stage, our examination of the American landscape from the late eighteenth century to the 1970s demonstrates that generations of abolitionists blended a humanistic and practical discourse. One can find in this period a prefiguration of modern American abolitionism’s focus on administrative, procedural, and utilitarian problems. By the same token, our survey documents how past American reformers regularly denounced the cruelty and inhumanity of the death penalty—killing prisoners is wrong per se—in language evoking human rights claims that have cemented abolition in modern Europe. The striking reticence of modern American reformers to use a humanistic discourse has obscured the past; and may have contributed to cultural essentialism assuming that such humanistic sensibilities are fundamentally “European” and not “American.” Moreover, the past American landscape shows that human rights objections were not suddenly born around the 1970s in Western Europe. 279 Rather, the emergence of modern democracy in the United States saw the continuation of a normative evolution in criminal punishment since the Renaissance and the Enlightenment. We will now see that, up until Furman, Europe charted a path toward abolition that was closer to the American experience than is commonly believed.
This Part pivots toward Europe to assess how its abolitionist movement evolved since the Enlightenment. While an overview of all European nations is beyond this Article’s scope, France offers instructive points of comparison to America. Enlightenment ideals shaped both nations, culminating in revolutions in the same period. 280 Despite the emergence of vibrant abolitionist movements in each country in the eighteenth century, they subsequently became laggards in abolitionism. In 1981, France became the last Western European democracy to abandon capital punishment, just as retentionist America was increasingly isolated among peer countries. 281 Comparing both nations therefore illuminates how abolitionists defended their cause in the face of adversity. We will later see that several key dynamics in France were analogous to the evolution of abolitionism in neighboring countries. 282 France thus offers a window into abolitionism in Europe until the adoption of international treaties buttressing abolition in the final decades of the twentieth century. 283
To numerous scholars, “the French Revolution and the fall of the Bastille came to symbolize the meanings of modern history.” 284 Before France’s revolution degenerated into the Terror and some 17,000 death sentences, 285 it matched the American Revolution in embodying Enlightenment reformism. Like their American peers, 286 French revolutionaries widely read Beccaria, whose precepts influenced their Declaration of the Rights of Man and the Citizen (1789). 287
A commission on penal reform subsequently presented its conclusions to the National Assembly in 1791. Le Pelletier de Saint-Fargeau, who headed the commission, proposed to replace capital punishment with imprisonment. Unlike past abolitionists’ calls for lifelong forced labor, he envisioned a form of rehabilitation under which sentences could vary between twelve and twenty-four years. Before imprisonment, however, wrongdoers would be exhibited on a plaza for public shaming and deterrence. Exhibiting the spirit of the day, the commission nonetheless proposed to retain executions for political crimes. 288
The vote failed, despite the exhortations of Adrien Duport. An architect of the Declaration of Rights’ bar on excessive punishments, Duport invoked Montesquieu and Beccaria when contending that cruel punishments encourage crime. 289 He equally proposed reframing the penal code with an article banning any sentence violating “the respect for the dignity of the human species.” 290 Still, the National Assembly reduced the number of capital crimes, abolished torture, and prohibited perpetual punishments in the name of rehabilitation. 291
Robespierre would come to incarnate the glaring contradictions between the French Revolution’s ideals and its carnage. Ironically, Robespierre deemed himself an opponent of capital punishment. He fervently urged its abolition, calling it a useless atrocity violating the “dignity” of humankind. 292 Meanwhile, Robespierre masterminded the execution of countless counterrevolutionaries. This contradiction partly stems from how Robespierre supported abolition—except for treason. Robespierre thus predictably demanded the beheading of Louis XVI, declaring that the king “must die so that the nation lives.” 293 Condorcet, another prominent revolutionary and abolitionist, was more consistent in his convictions as he opposed the monarch’s execution: “The punishment for conspirators is death. But this punishment is against my values. I will never vote it.” 294
The Terror came to an end with Thermidor, the fall and beheading of Robespierre on July 28, 1794. This facilitated additional abolitionist proposals, leading to a compromise on October 26, 1795. Legislators voted abolition but stipulated that it would come into force once peace returned, namely at an indeterminate future date. 295 This meant voting retention. The recurrent legislative debate nonetheless demonstrated that the death penalty’s propriety preoccupied numerous French revolutionaries.
The fate of abolitionism was subsequently tied to the near-century of instability following the French Revolution, as the nation saw a succession of political systems: the Directory (1795–1799), Napoleon’s various regimes (1799–1814, 1815), diverse monarchies (1814–1815, 1815–1848), the Second Republic (1848–1852), and the Second Empire (1852–1870). Abolitionism generally regressed under the most authoritarian systems, when the number of capital crimes grew. 296 The Napoleonic penal code even reintroduced corporal punishments in 1810, especially for parricides who would have their fists cut off before being executed. This practice was eliminated in 1832, along with branding. 297 French reformers kept demanding the limitation or abolition of capital punishment. For instance, the Société de morale chrétienne organized in 1826 a competition rewarding the most convincing abolitionist argument. Charles Lucas, a prominent jurist, won by declaiming the inherent injustice of an execution. 298
The advent of the July Monarchy (1830–1848) under Louis-Phillippe, the so-called Citizen King, enabled a reduction in capital punishment’s scope. 299 During the July Revolution (July 27–29, 1830) that gave rise to this constitutional monarchy, reformers proposed abolishing the death penalty to herald a new age. Among them stood the Marquis de Lafayette, who decades earlier had fought alongside American revolutionaries as a protégé of George Washington, before becoming a French revolutionary. France’s ensuing political turmoil led him to flee and be imprisoned in Austria for five years. 300 Lafayette regretted that the French Revolution failed to abolish capital punishment and his experiences made him mindful that criminal punishments could serve to repress dissidents: “[S]ince our political storms I feel an insurmountable horror for the death penalty.” Besides underlining the risk of executing innocents, Lafayette cast abolition as a “grand act of humanity.” 301 Other influential voices then espoused abolitionism, such as Alphonse de Lamartine, a famous poet and legislator, who decried capital punishment as sanguinary, useless, and illegitimate vengeance. The Société de morale chrétienne collected 18,000 signatures for an abolitionist petition. King Louis-Philippe lauded public enthusiasm for the cause, declaring in 1830: “Regarding the abolition of the death penalty, I am disposed to it due to a conviction that I have held my entire life. Your wish is mine, and I will put all my efforts into its realization.” 302 In reality, it would never be abolished in his reign of nearly two decades. Louis-Philippe’s words may appear hypocritical, but they reveal a chronic normative debate about the death penalty’s inhumanity.
Victor Hugo would come to personify abolitionism. In 1829, he published The Last Day of a Condemned Man, an avant-garde first-person narrative aiming to have readers identify with someone sentenced to death. It is unclear whether the narrator is guilty or innocent, or even what he is accused of. The novella is sophisticated, but its message is straightforward: any execution is inherently cruel and inhumane. 303 Hugo’s sensibilities paralleled those of nineteenth-century American intellectuals who demanded abolition. 304
Hugo was not merely a celebrated author, as he was a legislator under the July Monarchy and the ensuing Second Republic. 305 While he urged abolition before the National Assembly, 306 his indefatigable calls for penal reform extended beyond capital punishment. In 1847, Hugo presented a detailed perspective evoking Durkheim’s subsequent theory on the gradual mildening of punishments with the evolution from absolute monarchy to democracy. 307 Indeed, Hugo described a historical shift from premodern justice centered on repression and deterrence toward the humanization and rehabilitation of prisoners. Citing Montesquieu, Beccaria, and other thinkers, Hugo described how the prisoner has incrementally become “a creature worthy of attention even in his abasement.” He proclaimed a right “that no sentence can take away: the right one can never lose, the right to become better.” “Yes, the condemned is a man . . . . even when one no longer respects the man, one must still respect his humanity,” Hugo added. 308 His reasoning closely mirrored modern conceptions of inviolable dignity rooted in empathy toward prisoners at an abstract human level. 309
Multiple renowned French intellectuals and legislators shared Hugo’s abolitionism. Lamartine proposed inaugurating the Second Republic with capital punishment’s abolition in the name of the “inviolability of human life.” 310 The relationship between abolition and sociopolitical transformation is likewise manifest in the declaration of the socialist leader Louis Blanc, who supported abolition to offer “humanity this joyous gift with the advent of democracy.” 311 Victor Schœlcher, the leading figure behind the abolition of slavery under the Second Republic, embraced abolitionism too. Like many other French reformers, he blended normative, utilitarian, and administrative objections, including the bad example of a government that kills in vengeance, the risk of executing innocents, lack of deterrent value, and how murderers are underprivileged citizens whose education the government had utterly neglected. 312
The Second Republic eventually rejected abolition by a 498–216 vote, although it eliminated executions for political crimes. 313 The abolitionists’ defeat was undeniable and subsequent events further undermined their cause. After Napoleon III toppled the Second Republic, France reverted to authoritarianism from 1852 to 1870. Relative political stability would return with the Third Republic (1870–1940), which the historian François Furet identified as the actual end of the French Revolution and belated victory of its ideals following a near century of upheavals, backlashes, and regressions. 314 Scholars generally regard the Third Republic as a period of incremental liberalism, equality, and human rights in France. 315 As abolition slowly progressed in diverse parts of nineteenth-century Europe, French legislators made another push for it but failed by a 353–150 vote in 1894. 316
In this century abolitionism ultimately enjoyed less success in France than America, where greater political stability favored reform and the rule of law. Decentralization under federalism notably enabled abolition to prevail in Michigan and Wisconsin in 1847 and 1853, respectively. 317 Despite these divergences, we have documented a striking convergence in both nations’ abolitionist discourse from the Enlightenment to the nineteenth century.
The relative convergence persisted as France entered modernity. The return of democracy following a quasi-century of post-revolutionary political instability led executions to decline, partly due to frequent executive clemencies. 318 Famous French statesmen would demand abolition under the Third Republic, including Jean Jaurès, Léon Gambetta, Jules Ferry, Aristide Briand, and Georges Clemenceau. 319 Humanistic sensibilities continued to influence abolitionism, as illustrated by the stance of the socialist legislator Victor Dejeante in 1894: “It is in the name of humanity that we tell you: abolish the death penalty, scratch it from your legislation, make disappear this relic of barbarism.” 320 Jaurès, a towering figure in the history of social democracy, would declare that it was unchristian to tell prisoners “that they are just scum and that they only deserve to have their lives taken.” 321
While the two world wars did not favor abolitionism in France, the number of executions dropped in the 1950s. In theory, the death penalty’s scope expanded with the creation of new capital crimes like armed robbery. But France executed no one for this and the penalty was declining, as in Europe. 322
The paradigm shift materialized when Parliament passed abolition in 1981 and when France subsequently insisted that any execution is a human rights violation. 323 But the shift was more in the fact that this became the official discourse in Europe. As we saw, abolitionists in France, America, and beyond had long condemned the death penalty’s inhumanity. As Zimring correctly hypothesized, human rights norms “were important motivations beneath the surface of death penalty debates long before they emerged in the aftermath of abolition.” 324
In France at least, this paradigm shift did not occur despite an “absence of high levels of intellectual discussion on questions about capital punishment policy,” 325 but partly because of this very intellectual debate. We saw that thinkers in France began expressing humanistic concerns about the death penalty centuries earlier, in the image of Montaigne, Montesquieu, Voltaire, French revolutionaries, Victor Hugo, and numerous other reformers.
The breakthrough toward abolition in postwar France marked the continuation of this longstanding intellectual and public debate. Illustratively, in 1952, the abolitionist movie Nous sommes tous des assassins (Are We All Murderers?) enjoyed relative success. Directed by André Cayatte, this drama highlighted the cruelty of the execution process. 326
In 1957, Albert Camus joined the fray in publishing Reflections on the Guillotine, an abolitionist manifesto. 327 His two most prominent novels, The Stranger 328 and The Plague, 329 had previously depicted the inhumanity of capital punishment. Reprising an account from The Stranger, 330 Camus began his manifesto by describing the reaction of his dismayed father who vomited upon returning from a public execution. 331 Throughout Reflections on the Guillotine, Camus’s rhetoric is highly normative and humanistic in condemning capital punishment: “that ritual act is horrible,” 332 “primitive,” 333 a “vile death” akin to “torture,” 334 a “crude surgery,” 335 “the most premeditated of murders” committed by “a monster” 336 “from a barbarous period” 337 for “revenge.” 338 The death penalty’s uselessness is also a recurrent theme, as Camus is another archetype of polyvalent abolitionist rhetoric. He thus insisted on executions’ lack of deterrent value 339 and the risk of executing the innocent, interestingly citing a potential wrongful conviction in a U.S. capital case. 340 This reference, much like American reformers’ numerous citations to Reflections on the Guillotine in subsequent decades, exemplifies the transatlantic convergence in abolitionism in this epoch. 341 Last but not least, Camus advanced that the death penalty deprives human beings of their “dignity,” 342 which has become the official basis for human rights abolitionism in Europe. 343
As intellectuals like Camus sought to put abolition on the political agenda, capital punishment gained public attention due to high-profile murder cases. 344 In 1965, the father of a murdered child founded a pro-death-penalty organization that diverse public figures embraced. 345 The killing of a prison guard and nurse in 1971 further galvanized death-penalty supporters. In 1976, the murder of a little boy received highly emotional news coverage in France, 346 evoking the inflammatory reporting tied to the exceptional harshness of modern American criminal justice. 347 That year the execution of Christian Ranucci for killing a young girl led to a vigorous social debate given his potential innocence and false confession. 348 Gilles Perrault, the author of a 1978 book on the case—Le pull-over rouge (The Red Sweater), 349 adapted into a movie the following year 350 —testified before Parliament. 351 In addition to innocence, the hearing addressed the morality of executions when a Catholic bishop testified in favor of abolition, despite acknowledging divisions within the Church. “[A] man cannot be reduced to the act he committed at a given time,” Monsignor Fauchet pleaded, approving the ongoing “cultural” evolution away from executions. 352
All this media coverage enhanced the public profile of a defense counsel—Robert Badinter—who would eventually become the most prominent French abolitionist. Badinter embarked on this path in his forties, partly by happenstance, when he was asked to assist the defense in a capital case. 353 He ultimately represented several capital defendants and regularly spoke for abolition in the media. 354 While Camus might have become the movement’s most emblematic figure as France headed toward abolition, he died in 1960 at forty-six in a car accident. Badinter became the face of the cause.
In this period, intellectuals, journalists, and politicians grew increasingly concerned about a climate of vengeful justice. Death threats fell on Badinter, whose Paris apartment was bombed in 1976. Undeterred, the following year Badinter convinced jurors to spare the life of Patrick Henry, who was widely reviled for murdering the aforementioned little boy. 355 Badinter’s summation arguments denounced the immorality of the death penalty: “Justice, is that the pain of the parents of Philippe Bertrand, combined with the pain of Patrick Henry’s parents, if you let him be guillotined? The death of a twenty-three-year-old man to respond to the death of a seven-year-old child, that is not justice.” 356 Badinter warned the jurors that no appellate reversal or executive clemency would follow—they would be responsible for Henry’s death:
You can kill him or not. If you vote death, know he will be cut in half. Then time will pass. There will be other atrocious crimes, because they have always existed. And, then, one day, in ten years, in fifteen years, the death penalty will be abolished in France . . . . And you will be alone with your vote. You will tell your children that you sentenced to death a child killer, and you will see their look in their eyes. 357
French abolitionists kept insisting that any execution is inhumane. In 1979, Jean Bloch-Michel challenged Pierre Bouzat, the dean of the Rennes law school, who had defended the death penalty if used appropriately, such as without torturous acts. Bloch-Michel was unconvinced: “Torture is unacceptable. The death penalty is acceptable. Why?” 358
Certain French abolitionists underlined practical problems surrounding the penalty’s application. This led to a vigorous reaction from Jean Laplanche, a writer and psychoanalyst, who published a widely publicized article deeming France’s death-penalty debate “dehumanizing,” given its utilitarian dimensions. In Laplanche’s view, society was weighing the worth of offenders and victims to see which murderers deserved to die—instead of valuing every person’s life. 359
In a subsequent debate with Robert Badinter and Michel Foucault, Laplanche deplored an alleged tacit agreement to only refer to utilitarian arguments. 360 Badinter, by then a major public figure, responded that it was legitimate for him and fellow defense counsel to present utilitarian claims at trial if they were effective. He added that failing to rebut prosecutors’ claims of deterrence would be a poor strategy. 361 Badinter’s answer reminds us how abolitionists, from France to America, had long found a polyvalent rhetoric the best strategy, even if they were morally opposed to executions per se.
Abolition finally arrived in 1981. The presidential election of François Mitterrand, a Socialist, proved decisive in interrupting a series of conservative or centrist governments. 362 Mitterrand had promised abolition if he were elected. 363 Epitomizing a spectacular paradigm shift, he made Badinter—an anti-death-penalty lawyer—the Minister of Justice.
In a solemn speech, Badinter appeared before the National Assembly to demand abolition on behalf of Mitterrand’s government. 364 After invoking past abolitionists, from French Revolutionaries to Victor Hugo, Jean Jaurès, and Albert Camus, Badinter signaled that France was a laggard in Western Europe in retaining capital punishment. 365 He sought to refute the arguments of retentionists, who repeatedly interrupted him to trade barbs. Badinter notably emphasized executions’ lack of deterrent value and the risk of executing innocents, citing the Ranucci case. 366 Again evoking the transatlantic abolitionist dialogue, Badinter drew a comparison between the discriminatory application of capital punishment in America, where it heavily targeted black people, and in France, where immigrants and Muslims disproportionately were executed. 367
Moreover, Badinter’s multidimensional discourse stressed the death penalty’s fundamental inhumanity, stating four times that abolition is a “moral choice.” 368 He urged legislators to “refuse a justice that kills,” a “justice of angst and death,” an “anti-justice” that would be “fear triumphing over reason and humanity.” 369 Executions are characteristic of “dictatorships,” where “contempt for human rights” reigns. 370 Few people possessed as much credibility to draw this parallel between authoritarianism and state killing. Under the Nazi occupation of France, Badinter’s father and other family members were deported to death camps pursuant to anti-Semitic laws. 371
A few weeks after Badinter’s speech, Parliament voted overwhelmingly for abolition. This was partly because Mitterrand’s Socialist Party held numerous seats, but also because of a wider evolution. Tellingly, legislators who voted for abolition encompassed certain conservative leaders, including Jacques Chirac, who was elected President in 1995, and François Fillon, who became Prime Minister in 2007. 372 France now embraces the official European position that all executions violate human rights. 373 This paradigm shift did not occur suddenly. It was the fruit of a gradual evolution traceable at least to the Renaissance and Enlightenment. France was but one stage in a wider historical evolution that would culminate in European law forbidding the death penalty as inherently inhumane.
While a discussion of abolitionism’s evolution in all European countries is outside this Article’s scope, key dimensions of France’s path are analogous to those in neighboring nations, especially the gradual shift from polyvalent abolitionism toward human rights. For example, studies suggest that reformers in Germany, Portugal, and the United Kingdom historically presented both utilitarian and humanistic arguments to limit or abolish the death penalty. 374 Today, these nations have gravitated toward the position that any execution is an inherent human rights violation. 375 Although the dates of abolition varied for each country—Portugal (1867), West Germany (1949), and the United Kingdom (1965) 376 —abolitionism tended to evolve in the same direction. This does not deny national variations. In Germany, one may thus identify a “Holocaust atonement effect” 377 shaping dignity’s development as a legal norm following World War II, 378 including in the abolitionist debate, which recurrently addressed the Third Reich’s killings. 379 Nevertheless, Germany’s debate over the propriety of capital punishment did not begin then. It was already intense in the age of Bismarck. 380 More to the point, the German-speaking world had an influential Enlightenment figure akin to Beccaria, Joseph von Sonnenfels (1733–1817), an Austrian who advocated more humane sentences and restrictions on capital punishment. 381
Overall, scholarship indicates that the path toward abolition has been an incremental, long-term evolution, 382 thereby corroborating our case study of France. The main exceptions include former Soviet bloc countries that abolished capital punishment soon after the collapse of the U.S.S.R., partly in order to enter the Council of Europe. 383 The consolidation of Europe as an execution-free zone, as well as the decision of European nations and international bodies to support abolitionism internationally, would contribute to a sharp divide with the United States.
Until the last decades of the twentieth century, abolitionism in America and France, if not the rest of Europe, converged more than it diverged. Since the Enlightenment abolitionists had polyvalently marshaled humanistic and practical objections to the death penalty. Yet social shifts in modern America led humanistic approaches to decline under a dramatically harsher social climate. Executions resurged in the 1980s after the Supreme Court emphatically reauthorized capital punishment in Gregg v. Georgia (1976), after effectively abolishing it in Furman v. Georgia (1972). In these cases, the only Justices who focused primarily on the death penalty’s inhumanity and substantive cruelty were William Brennan and Thurgood Marshall, both of whom voted for categorical abolition. The remaining Justices concentrated on administrative, procedural, and utilitarian issues. 384 This fostered a path dependence under which practical issues would dominate the U.S. death penalty debate in subsequent decades, 385 eclipsing humanistic concerns. 386 Moreover, the rise of mass incarceration in this epoch essentially signified mercy for no one. 387 In capital cases and beyond, humanistic principles have scant influence in modern America, which now has practically the highest incarceration rate worldwide. 388 Under these circumstances, U.S. abolitionists plausibly found humanistic arguments less promising. Another possibility is that the normative shift toward draconian punishments affected social reformers, including in the “progressive” camp, by leading them to become less humanistic in outlook. This may have resulted in the emergence of the non-humanist abolitionist, if not the anti-humanist one who morally supports the death penalty but deems it unworkable.
Again, this trend is relative, not absolute. 389 Certain American abolitionists suggest that executions are fundamentally wrong. In doing so, they employ a polyvalent rhetoric blending humanistic and practical reasons. 390 Still, the modern emphasis on practicality is remarkable by U.S. historical standards and international ones.
By contrast, as abolitionism triumphed in Europe categorical humanistic objections came to trump practical ones. This led to the divergence that Franklin Zimring brilliantly captured, 391 which is best understood as the present point of a long-term evolution whose earlier periods have been overlooked. The shift in Europe is not that human rights norms suddenly emerged around the 1970s, as Zimring and Samuel Moyn argue, 392 but that they became the official basis for abolition. This was the fruit of a gradual normative evolution partly precipitated by generations of abolitionists denouncing the inhumanity, cruelty, barbarity or immorality of executions. In 1983, the Council of Europe issued an optional protocol abolishing the death penalty except in wartime. 393 A protocol abolishing it in all circumstances followed in 2002. 394 The second treaty is more explicit about its humanistic rationale, as its preamble underlines “the right to life” and “the inherent dignity of all human beings.” 395 The European Union has taken an identical position. 396
A premise behind human rights rooted in dignity is that they are inalienable. 397 One cannot forfeit them by committing a crime or for any other reason. The focus is not on the worth of an individual offender’s life but on the worth of all human beings at an abstract level. 398 Human dignity has evolved toward universality and is not based on individual merit. 399 European law thus essentially recognizes respect for human rights and dignity as a duty imposed on government. Irrespective of whether a murderer is despicable, the government should never lower itself to their level by killing an incapacitated person. Conversely, American law holds that people can forfeit their life by committing murder and discounting their duty toward others. The value of their life is tied to individual merit. 400 While America recognizes certain inalienable rights, 401 Europe is more inclined toward this approach, helping shape distinct forms of abolitionism.
To his credit, the divergence in framing that Zimring identified has strengthened since his book’s publication in 2003. In Al-Saadoon (2010), the European Court of Human Rights (ECtHR) held that the death penalty inherently violates the right to life and right not to face inhuman or degrading punishments under the European Convention on Human Rights. Hence, it categorically barred extraditing anyone who might be executed. 402 Previously, in Soering (1989), the ECtHR had focused on administrative problems in forbidding the extradition of a detainee who could have been executed in America. Sidestepping the inhumanity of the death penalty itself, Soering found the endemic delays before U.S. executions a form of mental torture—the “death row phenomenon”—since prisoners live for years under threat of being killed. As Judge Jan De Meyer deplored in a concurrence, Soering’s reasoning meant that extradition would have been appropriate but for the death row phenomenon. 403 Now Europe has essentially abandoned Soering in favor of an unconditional humanistic abolitionism.
Soering nonetheless was the chief European source that U.S. Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg cited in their landmark 2015 dissent urging another test case to abolish capital punishment. 404 Breyer and Ginsburg made no reference to human rights or dignity in their lengthy opinion, even when indicating that Europe no longer executes anyone. 405 Despite listing every conceivable practical objection to the death penalty, they never suggest that executions are intrinsically cruel or inhumane. 406 Republished as a book, 407 the dissent was effectively a manifesto of modern American abolitionism.
In 2020, Breyer and Ginsburg reiterated their position as they dissented against the federal government’s first execution in seventeen years. Their stance again focused solely on problems surrounding the death penalty’s implementation. 408
“A broken system” has become the quintessential American abolitionist argument. It is exclusively practical: the term “broken” implies that the death penalty “does not work.” Popularized by studies documenting the colossal reversible error rate in U.S. capital cases, 409 the phrase is ubiquitous nowadays. 410 It signifies that the system is rife with due process violations, abysmal court-appointed lawyers, exonerations of innocents, endemic racial and class bias, and exorbitant financial costs. Evidence of these problems is damning, prompting numerous U.S. experts to disavow capital punishment. 411
Yet, in terms of rhetoric, the “broken system” paradigm may prove too much by conceding two points. First, the death penalty’s inhumanity, cruelty or immorality is irrelevant. This may be the case for empiricists who assess reversal data and other quantitative matters. But the modern abolitionist movement generally concedes this point, too. In fact, the “broken system” expression suggests that killing prisoners would be appropriate if the system were not broken. Second, the expression implies that the death penalty worked well before being “broken.” If so, why would it be categorically irreparable? The death penalty has actually never been proven to be a deterrent, has always risked executing innocents, and has always applied arbitrarily, discriminatorily or disproportionately to vulnerable groups. Miscarriages of justice were not born with modernity. 412 By the standards that U.S. abolitionists stress today, the death penalty has never “worked” in America or Europe. It is therefore not “broken.”
Whether practical or humanistic claims are more effective in winning abolition is beyond this Article’s scope. We have instead examined processes of convergence and divergence in abolitionism since the Enlightenment. If history is a guide, it suggests that American abolitionists can employ a rhetoric encompassing both categories of arguments, which are not inherently incompatible.
To borrow Montaigne’s words, “a general duty of humanity” 413 emerged in the Renaissance before progressing in the Enlightenment and onward. Following in Beccaria’s footsteps, generations of abolitionists in Europe and America repeatedly denounced the cruelty of capital punishment in reasoning analogous to modern conceptions of human rights and dignity. This evidence bolsters Durkheim’s theory that an expanding norm of “human dignity,” tied to the development of liberal democracy, gradually mildened punishments. 414
This Article has documented how the “moral” or “political” objection to executions, which is at the heart of human rights abolitionism nowadays, 415 can be found in the positions of generations of abolitionists in both Europe and America. The overwhelming focus on administrative, procedural, and utilitarian objections to capital punishment in modern America has obscured how past U.S. abolitionists commonly employed a humanistic rhetoric, just like their European counterparts. History cautions against cultural essentialism assuming that such sensibilities are foreign to America. It was in modern times that a harsher America began focusing overwhelmingly on practical questions, whereas human rights became the official ground for abolition in Europe.
Institutional factors may also have shaped divergent abolitionisms. Supreme Court litigation appears the only foreseeable avenue for abolition in America, as the peculiarities of its federal system currently preclude nationwide legislative abolition. 416 Because European governments are far less decentralized, they have not faced this obstacle. Legislative debate may be more conducive to normative or polyvalent arguments than litigation. After all, precedents restrict the claims abolitionists may present in court; and the post-Furman jurisprudence has oriented them toward procedural ones. Elsewhere in the West it was mainly parliaments that passed abolition 417 in fora potentially more amenable to humanistic discourse. 418
However, one should not overstate this difference. America has twenty-three states without the death penalty and in most of them it was legislators who passed abolition. 419 And, unlike in past times, humanistic arguments carry limited weight in state legislative debates nowadays. 420 Naturally, this trend may change someday, such as if more abolitionists match the stance of Gavin Newsom, the Governor of California, who partly defended his 2019 moratorium on capital punishment on this ground: “[T]he intentional killing of another person is wrong and, as Governor, I will not oversee the execution of any individual.” 421 So far this humanistic position remains atypical of how twenty-first-century American politicians, judges, journalists, and abolitionist groups approach capital punishment. 422
As modern America debates penal reform, humanistic principles have perhaps made the most headway in juvenile justice. 423 The Supreme Court notably referred to international human rights standards when abolishing the juvenile death penalty 424 and restricting the scope of life without parole for juveniles. 425 It is too early to tell whether these developments herald a genuine development of human rights, as this jurisprudence could be interpreted as creating a rigid age carve-out for constitutional protections. By contrast, dignity is a universal norm that cannot be forfeited by entering adulthood. 426 Dignity has thus significantly contributed to Europe’s abolition of both capital punishment and life without parole 427 for everyone, not merely minors. The vigorous backlash against the Supreme Court’s few references to international human rights standards in capital cases has hindered the efforts of Americans amenable to this path. 428
The United States’ persistent racial divide might remain another impediment to abolition. American reformers have long fought on several fronts with, on one hand, the abolition of capital punishment, and, on the other, challenging systemic racism. These efforts have been intertwined to an extent given the death penalty’s racist history. 429 Although capital punishment in Europe served to repress the downtrodden poor, as Victor Hugo and fellow reformers insisted, 430 an American-style racial caste system did not exist throughout Europe. This dual struggle has created formidable obstacles for American abolitionists. 431 Nevertheless, the rhetoric of Frederick Douglass, Sojourner Truth, Martin Luther King, and Thurgood Marshall suggests that past generations of American abolitionists managed to conciliate a defense of universal humanistic principles and racial equality. 432
Today, European authorities have added their voices to the generations of abolitionists who have urged the end of capital punishment in the United States. Europeans do not only refuse to facilitate executions by extraditing detainees. 433 Following a campaign by Reprieve, a British human rights group, Europe barred the export of drugs used for lethal injection in America. 434 This helped precipitate the U.S. Supreme Court case in which Justices Breyer and Ginsburg issued their call for abolition. 435 In fact, Europe aspires to spearhead global abolition. While such an international legal and diplomatic campaign appears unprecedented, 436 its moral foundation evokes the positions of abolitionists on both sides of the Atlantic since the Enlightenment, in the image of the petition that Henry David Thoreau and his peers signed in 1849: “[An execution is] a crime in which we would under no circumstances participate, which we would prevent if possible and in the guilt of which we will not by the seeming assent of silence, suffer ourselves to be implicated.” 437
I am grateful to Glen M. Johnson, Joshua Kleinfeld, Frédéric Mégret, Sherod Thaxton, Franklin Zimring, and the anonymous peer reviewers for their helpful suggestions on this project.
