(Texas has since carried out more than 400 executions by lethal injection, a number which accounts for more than one-third of all executions in the U.S.) Of the thirty-six states that execute criminals, all except Nebraska kill inmates with a three-drug combination that initially puts them to sleep, then paralyzes them, and finally induces cardiac arrest. (Nebraska continued to electrocute inmates until the method was declared cruel and unusual by the Nebraska Supreme Court in 2008.) The history of capital punishment, therefore and paradoxically, reveals the state’s very unease with the punishment, for the history of capital punishment has been a steady if quixotic quest to identify a mode of bringing about death that is supposedly more humane than its predecessor—until at last the legislature concludes that the taking of human life is inherently cruel, regardless of the method by which the sanction is carried out. Our system of crime and punishment has progressed, so to speak, from stark brutality, to more nuanced bruality, to the recognition that all intentional homicide is brutal, to abolition.

Hugo’s protagonist says that the public “see nothing but the execution, and doubtless think that for the condemned there is nothing anterior or subsequent!” Hugo is no theologian. We therefore cannot learn from him whether there is indeed anything subsequent. His interest is in the anterior (and, of course, the present). Hugo understands that the condemned suffers immensely, but not primarily as a direct consequence of the infliction of the punishment. Rather, Hugo’s protagonist suffers exquisitely in anticipation of his fate. He tells us what he fears and what he will miss. Because we do not know the details of what he did, we cannot help but see him as a sentient human being, instead of as a depraved killer. Supporters of capital punishment may be unmoved by Hugo’s understanding that the condemned suffers immensely, for the common reaction to stories of hardships endured by those awaiting execution is that they do not suffer enough, that they have it better than their victims, that they, unlike their innocent victims, know their fate. At least we can say of this reaction that it is an honest one, revealing the only basis on which capital punishment can be defended: a visceral and unforgiving antipathy toward anyone who wrongfully takes a human life. But as Hugo shows us here, the condemned prisoner is also a human being who loves others and is loved by them, he is a man who loves life on this earth, and who fears the mob that will come for him. We see in him what it is to be a human being: reason coupled with emotion, rationality coupled with appetite, a simple yet potent desire to live on this earth another day. Whether Hugo persuades supporters of the death penalty to abandon their position is for them to say; what is undeniable is that he shows here irrefragably that the objects of our machinery of death are human beings, not mere beasts.

Proponents cite three justifications for their support of the sanction: that it is cheaper than the alternatives, including life in prison; that it deters other crimes; and that it satisfies society’s retributive impulse. As we know from extensive documentation, however, the death penalty actually costs more than the alternatives, and there is no reliable evidence at all that it deters. So we are left with the final justification, which is, truth be told, not so much an argument as an explanation. Defending executions by saying that nothing else will satisfy society’s retributive impulse could be used with equal efficacy to justify lynching or torture, and it probably has been. If it were sufficient to justify an action on the sole ground that we feel a strong impulse to pursue that action, our world would indeed be a Hobbesian one, yet Hugo recognizes that, with respect to capital punishment, there is no other justification, or at least none that is not facetious.

When asked on CBS’s Sixty Minutes whether he had seen the video of Saddam Hussein’s hanging, President George W. Bush said he had seen part of it. He did not, he told reporter Scott Pelley, watch Saddam fall through the trap door, on the short journey to having his neck broken. Pelley asked him why not. President Bush responded that he is not a “revengeful” person. That might seem like a surprising disclosure from a man who, as Governor of Texas, presided over 152 executions, but it does serve to highlight that there is no other reason—none besides vengeance, now euphemistically known as retribution—for the state to kill.

And that, in the end, is how Hugo succeeds: by showing us a criminal, a prisoner, a mere man, whom we have no urge or impulse to kill or even harm, for whom we feel not disgust or loathing, but empathy. When he laments that he will see no more sunrises and hear no more singing birds, we know exactly what he means, because these are our regrets, too. Whatever he has done, he is still flesh and blood, a living, breathing, fully realized human being, so that when we kill him, by whatever sterile means we accomplish the deed, we have taken a human life, we have committed a homicide, in contravention of the single norm that every society in the history of human civilization has embraced: Thou shalt not kill.

DAVID R. Dow is the University Distinguished Professor at the University of Houston Law Center, where he specializes in contract law, constitutional law and theory, and death penalty law. He is the Founder and Director of the Texas Innocence Network, as well as the Litigation Director at the Texas Defender Service, an organization devoted to securing competent representation for inmates on Texas’ death row. Since the early 1990s, Dow has represented nearly one hundred death row inmates in their state and federal appeals. He is the author of more than one hundred professional articles and essays, and four books, including Executed on a Technicality (Beacon 2005).

Preface

The only preface to the first editions of this work, published at first without the author’s name, were the following lines:—

“There are two ways of accounting for the writing of this book: First, a bundle of torn, yellow papers was found, on which were written, in order, the last thoughts of a poor wretch; second, there was a man, a dreamer, who was given to studying nature for the sake of art. He was a philosopher perhaps, or a poet, I know not just what; but he took hold of this fancy, or rather he let it take hold of him, and he could rid himself of it only by putting it into a book.

“These are the two theories, and the reader may choose the one which pleases him the better.”

At the time of the publication of the book, the author did not think it wise to say too much.