In future times people will look back on the death penalty as a piece of barbarity just as we now look back on torture.’ These confident words were spoken by a member of the 1848 Frankfurt Parliament, which voted amid cheers to abolish capital punishment, except in military law. By the spring of 1849 it had been ended in a score of German states, including Prussia. Like the liberty trees and torchlit processions that greeted the outbreak of revolution, ending capital punishment was a symbolic act. It was intended to mark the end of princely arbitrariness, show the state’s respect for human life and provide the cornerstone to a new, higher morality.
The abolitionists drew on arguments that had been around since the Enlightenment. Cesare Beccaria’s Dei delitti e delle pene (1764) had made the case that capital punishment was a violation of the social contract and an ineffective deterrent; only the power of custom perpetuated it. This failed to persuade most early German commentators. Kant insisted on the importance of retributive justice; even Karl Ferdinand Hommel, the ‘German Beccaria’, parted from his mentor over the death penalty. But abolitionist sentiment grew in the first half of the 19th century. Capital punishment offended liberal belief in the moral rehabilitation of the offender, and the increased attention that jurists paid to psychiatry (the first German textbook of forensic psychiatry appeared in 1835) raised the issue of moral unfitness as a mitigating factor in crime. Mounting concern with the social question underlined the fact that, in Friedrich Noellner’s words, ‘the death penalty is applied almost exclusively against the proletariat.’ Two further arguments were forcefully made in 1840 by a Heidelberg professor, Carl Joseph Anton Mittermaier: first, that there was no statistical correlation between capital punishment and the number of capital offences; second, that the death penalty distorted the judicial system because it led to a greater number of acquittals. These arguments still figure in the abolitionist case.
Mittermaier and his contemporaries believed that history was on their side. Certainly, the changes in the incidence and character of capital punishment over the previous two centuries were striking. In most parts of the Holy Roman Empire, the Carolina Criminal Code promulgated by Charles V held good into the 17th century. It prescribed the death penalty not just for murder and treason, but for arson, blasphemy, counter-feiting, conjuring, witchcraft, abortion, rape, unnatural sex, highway robbery, robbery or attempted robbery with violence, and a third conviction for theft (an early and extreme version of ‘three strikes and you’re out’). As the absolutist state grew more secure, however, major changes occurred. Punishments such as breaking on the wheel or burning at the stake gradually disappeared, along with the use of torture to obtain confessions; methods of execution were standardised (usually decapitation with the axe) at the same time that overall numbers declined. Enlightened absolutist rulers such as Frederick the Great reduced the number of capital crimes. And as executions became fewer, each one became a more sternly ritualised spectacle of state power designed to have an educative effect.
These changes caused new problems, which became steadily more apparent in the early decades of the 19th century. The smaller number of executions increased the size of crowds, threatening public disorder. Efforts to strip older, communally sanctioned religious rituals away from executions led to a popular backlash: onlookers were clearly not learning the correct lesson from what they witnessed. When inexperienced executioners made mistakes, the crowds protested; sometimes even the condemned failed to play the role required of them and behaved ‘cheekily’. All of this alarmed rulers and officials. Moreover, the growing use of princely clemency personalised the issue, underlining the power of the prince over matters of life and death. By the 1840s, executions were taking place much less frequently in Germany (at a rate about one sixtieth of that in England and Wales) and the future of the death penalty appeared to be in question. Even many who defended it expected it to disappear within a generation.
But it didn’t. A.J.P. Taylor once remarked that 1848 was the moment when German history reached its turning-point, and failed to turn. This is more false than true, but it fits the history of the death penalty – up to a point. Capital punishment was restored across most of Germany during the 1850s. Bavaria and Hanover were among the states that went over to the guillotine, once tainted by association with revolution, now evidence that revolution had been mastered. This was no wholesale reaction, however. In a continuation of the pre-1848 trend, the number of capital offences was further reduced, and fears of disorder finally led to the ending of public executions. Many German monarchs also remained reluctant to sign death warrants. Around two-thirds of Prussian death sentences were commuted by royal clemency in 1854-65, a figure that was higher in cases of murder committed because of poverty, infanticide, and for convicted women in general. The 1860s saw the high water-mark of liberal optimism in Germany, as across much of Europe, and one sign of this was a revival of abolitionist sentiment. For Eduard Lasker, a key liberal politician during the period of German unification, ‘the continued existence of the death penalty, however little it is carried out, indicates a certain lower state of culture.’
A characteristic liberal compromise with Bismarck meant that capital punishment was eventually retained in the new German Empire, although William I’s Protestant conscience led him to commute all death sentences during the 1870s. What changed the situation was Bismarck’s exploitation of an attempt on the Emperor’s life in 1878. This became the pretext for an anti-socialist law; it also allowed Bismarck to bounce Crown Prince Frederick into signing a death warrant against the would-be assassin. (The irony was that Frederick enjoyed a reputation as ‘English’ and liberal – even if England was hardly a liberal model when it came to capital punishment.) In the 1880s, executions resumed across Germany, sometimes after a gap of fifteen years. In Prussia, they became much more frequent when William II arrived and eagerly signed the death warrants that had so troubled his grandfather. Middle-class opinion, too, was changing, first in reaction to anarchist ‘outrages’, then with the spread of harsher views about the ‘degenerate’ hereditary criminal. The legal official who referred in 1912 to ‘obdurate monsters’ spoke for a growing public. Abolition became the cause of a distinct group of middle-class radicals, together with the Social Democratic Party, which saw capital punishment as the final form of ‘class justice’. War and revolution appeared to give the Party its opportunity. In the 1919 debate over the Weimar Constitution, the Social Democrat Hugo Sinzheimer put a motion of admirable simplicity: ‘The death sentence is abolished.’ But even sympathisers argued that discussion of the issue should be postponed until the pending revision of the Criminal Code – still pending when the Nazis came to power. During the middle years of the Weimar Republic very few executions were actually carried out, partly to prevent Germany drifting too far apart from Austria, where the death penally had been abolished, and partly because of doubts that arose in the wake of miscarriages of justice. However, while the League for Human Rights used individual cases to argue for abolition, sensationalised cases like that of Peter Kürten (the model for Fritz Lang’s M) worked in the opposite direction, isolating the ‘sentimentalists’ and leading to what one liberal paper conceded was ‘an outcry in favour of capital punishment’.
In this sphere, as in others, the Nazis worked with the grain of what they liked to call ‘healthy popular feeling’. The death penalty became ‘racial self-defence’. Even before the radicalising impact of war, executions became more numerous, more arbitrary and more triumphalist. After 1939, tens of thousands of quasi-judicial killings were sanctioned by regular courts, ‘special courts’ and military courts. Even this smacked of pedantic legalism to Nazi leaders, however, and the execution of ‘asocial elements’ and ‘community aliens’ was increasingly removed from the judicial process altogether. The death camps represented the end-point of this assembly-line extermination.
Perhaps the greatest surprise of the post-war period is that capital punishment ended so soon in one part of Germany. All four occupying powers employed it in their judicial systems – the French only ended public executions in 1939 – and used it extensively against war criminals and others in the troubled years after 1945. The British, taking no chances, even imported the official hangman, Albert Pierrepoint, and ropes from Messrs Joh. Edgington (‘their products have always given satisfaction,’ said one official). As Germans resumed control of their own affairs, the Criminal Code of 1871 remained in effect. But the Parliamentary Council that prepared the Constitution of the Federal Republic wrote abolition into the Basic Law: the result of an alliance between Social Democrats and liberals, reacting against the crimes of the Third Reich, and conservatives concerned by the continuing application of capital punishment to war criminals. There were many efforts to overturn this provision – Konrad Adenauer was still trying in 1962 – but abolition gradually acquired legitimacy. Since the second half of the 1960s, opinion polls show that it has enjoyed growing popular support. In the German Democratic Republic the pattern was different. The death penalty was retained there as an ‘anti-Fascist’ measure, and suspended only when the Honecker regime was actively courting Western opinion in the Seventies. Stasi officers and others convicted of spying were still executed up to 1981, and the death penalty was not formally abolished until 1987.
This is the capsule version of Richard Evans’s important new book, trying to do justice to which makes one feel like a hapless contestant in Monty Python’s summarising-Proust competition. The central theme is clear enough: capital punishment was and is the symbol of political sovereignty. Evans shows how that symbolism informed all the debates about retention, reform and abolition, driving home the point in many illuminating discussions of the use of clemency, from absolutist rulers to Honecker. But there are sub-plots running through the text that deserve books to themselves. One is the issue of the executioners. Those who did the dirty work were historically drawn from ‘dishonourable’ occupations (knackers, skinners), and the job ran in families. In the 19th century, professionalisation introduced exams and apprenticeships in good German fashion, but dynasticism and earnings on the side both persisted, even if executioners were now as likely to run a laundry or a bar as a knacker’s yard (one gave ballroom dancing lessons). Evans has drawn on official files to provide plenty of darkly comic material on the executioners’ spats with authority over money, and the problems arising from levels of alcohol consumption that did little for job performance. A more chilling anecdote records the 1941 request by Johann Reichhart for permission to exceed the speed limit on German roads. He needed to travel more quickly from one site to the next, understandable when we learn that the following year he performed 764 executions.
Executioners always had a special mystique. Julius Krautz was the subject of many verses and popular broadsheets before reaching the height of his notoriety in Victor von Falks’s The Executioner of Berlin (1890-1), a serialised penny dreadful that reputedly achieved higher sales than any other 19th-century German novel. Evans has much to say about popular representations of capital punishment, without being either patronising or sentimental. A fine early chapter plots the shift over the 17th and 18th centuries, from depictions of ‘martyrdom’ to ‘moral speeches’, and analyses the ambiguity of folk songs about the condemned, while in later chapters Evans deals extensively with sensationalist reporting, not only of celebrated cases like that of Peter Kürten but of many less familiar ones, using a source successfully exploited by Larry Wolff in his book on child-murders in Freud’s Vienna, Postcards from the End 0f the World. Well-chosen woodcuts, cartoons and photographs do more than just accompany the text.
Evans understands the theatricality of executions, a quality most prominently displayed in the first third of the book, dealing with the period up to the middle of the 19th century. It is here that he devotes most attention to the ‘rituals’ of his title, and engages most fruitfully with the theoretical big guns: Philippe Ariès on changing attitudes towards death, Norbert Elias on the ‘civilising process’, and Foucault on the emergence of the ‘carceral society’. In the last two thirds of the book, the balance tilts towards a more purely political account, in which parliamentary debates and administrative structures increasingly set the tone. This shift of emphasis partly mimics the declining ritual element in executions themselves, as they moved behind prison gates; it also shows how hard it is to transcend the very different paradigms that have developed in writing on Early Modern and modern European history. Few even try to bridge that divide. If Evans has not entirely succeeded, he has also not written the broken-backed book that would surely have been produced by a less gifted historian. Rituals of Retribution is a model of how to organise rich and refractory material: it is carefully constructed, the main theme is deftly interwoven with the larger course of German history, and the analytical narrative almost never falters.
Whether the book needed to be quite so long is another question. When a court makes II recommendations, every one of them is enumerated, and there are reports on parliamentary debates in which speaker after speaker urges, agrees, asserts, declares, alleges, remarks or opines, until the thesaurus has been exhausted. When Evans talks about the sale of blood from the decapitated, he gives us eight examples; a discussion of how royal clemency was exercised in Prussia during the 1850s and 1860s deals in turn with no fewer than 24 individual cases. Yet fidelity to the sources is among the book’s strengths. Cumulatively, Evans brings us closer to the bodily reality of his subject. Few readers will forget the descriptions of people being broken on the wheel, the account of epileptics holding out cups so that they could catch and drink the blood spurting from the necks of the decapitated, or the many examples of horribly botched executions (‘the axe had not gone all the way through but only cut through the neck to the extent that the windpipe was certainly cut, but the head was not severed from the rump but hung down it and wobbled about’).
Richard Evans makes it clear at the beginning that he is an opponent of the death penalty, who first became interested in the subject during the campaign for abolition in Britain during the Sixties. He ends his Introduction with a reminder that capital punishment is ‘something real, that happened to real people in the past, and is still happening to them in many parts of the world today’. Yes it is, and one of those places is the US, where it is happening with growing frequency. Those who have come to expect little in the way of backbone from the present incumbent of the White House should perhaps have noted just how deliberately Candidate Clinton broke off campaigning in 1992 so that he could be present during the execution of a mentally retarded young man in Little Rock. I wish I believed that reading some of the descriptions in this book would cause him to reflect. They would clearly not impress Attorney General Bob Butterworth of Florida. Commenting on a recent case in which the mask of an electrocuted man caught fire, causing many present to be nauseated by the stench of burning flesh, he observed: ‘People who wish to do murder, they better not do it in the state of Florida, because we may have a problem with our electric chair.’
Send Letters To:
London Review of Books,
28 Little Russell Street
London, WC1A 2HN
Please include name, address, and a telephone number.