With a record 1,137 men and women imprisoned on our death rows, Robert Badinter's recent visit to the United States couldn't have been better timed. He is the minister of justice of France, a civil libertarian and Socialist who 16 months ago successfully persuaded the French Parliament to abolish the death penalty.
Badinter, here to sign a prisoner-exchange agreement with Attorney General William French Smith, is a literate man with a talent for directness. He told Americans that our use of the death penalty puts us in foul company: "Everywhere that dictatorship and contempt for human rights prevail, the death penalty exists in the law and is practiced in fact. . . . This is not mere coincidence but the result of a clear correlation, for when it is utilized in a democratic country, capital punishment implies a totalitarian conception of justice."
This is a discomforting argument that we aren't accustomed to hearing. Perhaps only an outsider can deliver it. And perhaps only the highest law official in France, the land of the guillotine, where saints were burned at stakes before cheering mobs, can shame us out of our current policy.
Badinter, who has long been associated with Amnesty International, gives the French perspective to arguments advanced by death penalty opponents in the United States. The first is that death rows are scenes more of racism than justice. Forty percent of the inmates scheduled to be shot, drugged, hanged, shocked or gassed to death in U.S. prisons are black, while blacks are less than 12 percent of the general population.
France's racism is similar, Badinter notes: "Of the nine persons executed between 1965 and the date of abolition, three were North Africans, who represent only 2 percent of the population. Were their crimes more serious, or was it that they simply inspired more horror than crimes of equal seriousness?"
The notion that killing murderers lowers the homicide rate is as much a sham in France as here. Badinter tells of two 10-year periods. During the first, heads were severed regularly by guillotine blades. In the following 10 years, death sentences were commuted. "If the proponents of the death penalty as a means of deterrence are to be believed," Badinter says, "this period of announced clemency should have brought about a striking increase in violent crime. What in fact happened? Exactly the opposite. While the guillotine was idle, the number of murders fell by 50 percent."
Statistical refutations of the death penalty are easily made. When Badinter came by my office the other day, I asked his views on the harder, more emotional, question: what do you tell the families of murder victims who would like to see the criminal die?
"It's a natural reaction," he answered. "I understand it perfectly. All of us would feel the same. But justice is precisely not the expression of private individual reactions. It is precisely above them. If justice were just individual retaliation, you would take the man and hand him over, as in the old days, to the victims."
In 1972, Badinter, as a lawyer, witnessed one of his clients guillotined. A year later he wrote "The Executioner," an acclaimed book on French criminal justice that matched, in parts, the power of Albert Camus's enduring essay against capital punishment.
Having closed France's death rows, Badinter is now trying to bring on other needed humanizing reforms: eliminating military courts, shortening sentences, persuading judges to use prison as a last resort, and calling for alternative sentences and restitution programs. He created a furor, and riled the French right, when he took office and ordered the release of all prisoners with sentences of six months or less.
Badinter intended the freeing as an act of mercy. It was that, certainly, but after he calmed his countrymen's irrational fears that the streets would be filled with wild criminals, Badinter could point to a lowered recidivism rate among the released inmates. Prisons, he says, "are dangerous and useless--in six months you corrupt a man."
Badinter likes Americans, though not some of their tastes. The day the death penalty was overturned in France he received a telegram from a "rich millionaire in Texas" who wanted to buy an outlawed guillotine for his game room. Sorry, replied Badinter. He then turned over the device to a museum, where it was placed in a basement out of public sight..