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result of the decrease in executions." So say the advocates of the death penalty.
This argument has a surface illusion of logic which vanishes on the most cursory examination, because these two facts bear no relationship to each other. As already noted, Georgia has executed more people than any other State in the Union, and it has the country's highest murder rate. The nearby States of Alabama and Mississippi also rank high on both executions and murder rate. In the New England States-several of which have abolished capital punishment-the execution rate is the lowest in the country and so is the murder rate.
In many cases, the murder rate in this country is not increasing in proportion to the population; it has in fact declined in the past 35 years. But violent crime in our midst provides many signposts which direct us to reexamine our way of life: increasing urbanization with its overcrowding and poverty; neglect of our rural poor in the fields of education and employment; the growing army of privately armed citizens; police and government practices in which the individual is reduced to a number and which create the impression that human life is cheap. All of these and many, many more factors may contribute to our crime rate. But the one signpost which is not present, and which has no validity, is that capital punishment is a deterrent to murder. The new weapon of capital punishment adherents is the catch phrase "crime in the streets." They are much given to expostulating that "crime in the streets" has got to be stopped and that the way to stop it is harsher sentences in general and the more widespread use of the death penalty in particular. But "crime in the streets" is merely a misleading, emotional slogan. According to the FBI uniform crime reports, at least 80 percent of all homicides are "crime in the bedroom," between members of a family or "crime in the living room and kitchen" between acquaintances and friends. Less than 15 percent of homicides are felony murders. What is more, according to the FBI, these percentages have not varied significantly in the past decade. More and more, the American people have rejected the death penalty as a solution to social problems. Only 4 years ago, when the American Civil Liberties Union adopted its position opposing capital punishment, we were one of a handful of organizations opposed-a small current against a tide of public opinion. Today, that tide has turned and is rising steadily and irreversibly. The Gallup poll shows that only four out of 10 Americans now favor keeping the death penalty.
Equally significant, Americans in their policymaking roles, speaking through their organizations, are solidly opposed to capital punishment. The major religious bodies: The American Baptist Convention, the Disciples of Christ, the American Lutheran Church, the Methodist Church, the United Presbyterian Church, the Protestant Episcopal Church, the United Church of Christ, the National Council of Catholic Women, the Union of American Hebrew Congregationsall these and many, many more have stated their opposition to the death penalty on theological grounds. Correctional associations, with their direct experience in prisons, reject capital punishment, as do associations of lawyers, social workers, psychologists, and others who work in this field.
Add to these the leading voluntary associations and most of organized labor, and the total is an impressive mandate to the Congress and the Government to end capital punishment now.
There is no doubt that one day capital punishment will be outlawed in Federal crimes and in each State. Thirteen States have already abolished it, and, in at least six others, the last legislative vote was so close to retain it that we can believe the next time around will see a reversal.
In addition, the judicial system is recognizing the validity of the constitutional arguments against the death penalty. In the Witherspoon case, the Supreme Court ruled that since the majority of Americans are now opposed to the death penalty, it was a denial of an impartial jury to exclude those with scruples against capital punishment from serving on juries in capital cases. In the Lindbergh Law case, the Court found that the threat of execution frequently made prisoners sign away their rights to a jury trial by pleading guilty in the hope of getting only a life sentence before a judge.
What is happening then, is a slow undermining of the system of justice in capital cases. Prodded by district attorneys, jurors composed exclusively of people who believe in the death penalty continue to sentence individuals to death, secure in the knowledge that they are free to act irresponsibly since very few will actually be executed. And the number of people waiting on death row mounts-now up to 457 men, some of whom have been there for 6, 10, and even up to 13 years. The fact is that this impasse will not be broken by court decision. It is up to the Congress, representing the American people, to give leadership and voice to our desire to have this medieval practice abolished as it is in every other Western democracy.
We have heard it said that after all, abolishing the death penalty should be a minor effort since relatively few people are affected by it. And it is true. Less than 500 people are facing execution now; only two have been executed in the past 2 years. But capital punishment has a significance far greater than the numbers directly affected by it. If we can abolish it, our society will have taken a giant step toward the day when we can mete out rehabilitation to criminals, not revenge; treat social disorders from their root causes, not by repression, and make the phrase "equal justice under law" a reality.
Senator HART. Mr. Speiser, that statement does not suffer by comparison with the very eloquent one of the Attorney General we just heard at all.
Mr. SPEISER. Thank you.
Senator HART. Indeed that last paragraph, or a point made in the last paragraph responds to something that I have heard voiced as a criticism against the bill that we are considering. People say, well, you know, there are an awful lot of other problems around loose in this country, and hardly nobody is actually executed under the death sentence; you are really fiddling around with a very peripheral problem.
The next time I am hit with that criticism, I am going to try to remember the words of your last paragraph.
Mr. SPEISER. It probably has an even broader effect than that, Mr. Chairman. As one of the few Members of the Senate who voted against the omnibus crime bill, the heart of the pressure for that bill was a
reaction against some Supreme Court decisions, and this has been one of the effects of capital punishment, on forcing the courts to look carefully when they consider the fact that they have a human life at stake, in the decisions. And I think that if that factor were removed, it would perhaps remove some of the criticism of the court, unjustified criticism as it may be, but it would at least remove the emotionalism of a capital case from the context of court decisions.
Senator HART. I was going to thank you off the record, but I wish now to do it on the record, since you made reference to my being one of the four who voted against that so-called safe-streets bill. I appreciate the letter you wrote me afterward.
Mr. SPEISER. It was little enough, I think, for a vote of that kind. Senator HART. Turning around now to look at this thing another way, to wind this up, I think you can make a fair argument that continuing capital punishment, whether you execute the sentence or not, may itself contribute to violence in this country. I know this strains a little, but I would appreciate your reaction to this line of reasoning. In the last few years we have seen national figures shot down, our President, a nonviolent voice apealing to decency, and finally a committed Senator of the United States. Everybody the next morning is expressing regret and is surprised, shocked. And I have suggested, and maybe while it is quite right that we express regret, revulsion. I am not so sure that we honestly can say we ought to be surprised, because our society itself applies violence and kills people when it says there is justification for it. We are treated every night of the week to a body count in our own living room when the news comes on with how many were killed in Vietnam, but we say that is justified killing, society justifies that. And then occasionally, there is reported to us the killing of somebody, generally some-always apparently-some ignorant, poor fellow, quite often black, under the execution of a guilty finding and the application of capital punishment. But we say that is justified. Now, whatever else there is in common among those who themselves execute a death sentence on a President or a Dr. King or a Senator Kennedy, one thing is they feel they are justified in doing it; for some twisted reason they feel that society is better off as a result of their action. Could we not argue that the mere existence on the books of capital punishment, and the occasional execution of one found guilty of some heinous crime just contributes to and feeds violence at least in the minds of these sick people who run around engaging in cutting public figures down? Could you not make it a legitimate argument? Mr. SPEISER. It certainly seems that is a legitimate argument, that to the extent Government engages in killing of the human body, that erodes the concept of the sanctity of human life. And I think it was Jutice Brandeis who said that for good or ill the Government is the most omnipresent teacher of us all; how the Government acts affects the way society acts. And it would seem to me that the Government by continuing to have capital punishment does in effect promote the idea that there can be such things as justified killing when people feel strongly enough about it.
And there is the additional factor, it seems to me, that when you come down to if you get all the arguments away as to whether it deters and it does not that you finally end up with revenue which is not a very governmental-like activity. If, for example, Oswald had
lived and had been tried and had, under the laws of Texas been executed, can it actually be said in any way that his death matched or satisfied society's need for revenge to satisfy, to match the death of a President. It just does not in any scale of values and it demeans society to engage in revenge-like activities. And I think that the same thing is true for any people who commit crimes that are subject to punishment.
For example, as far as political assassination is concerned, as far as I know, every individual who has assassinated a President has been executed or killed during the capture. And yet, even at this late stage we have political assassination existing in this country. So it does not deter what we all would like to see deterred. And to the extent that the Government says, well, we can justify executing a human being in cold blood, even though we, the Government do not know that individual, that it seems to me lends credence to individuals who think that political assassination is justified at some time, and they feel strongly enough and they think they have the country at heart. And it does seem to me there is a carryover.
Senator HART. Maybe we ought to conclude this way. The death penalty, capital punishment does not deter, as you point out, and as the Attorney General reminded us, as all of the documentation in this record establishes, capital punishment does not deter. There is just no playing around with the figures that can prove that the death penalty does not deter. This in my mind is beyond debate. We are all of us covered by acts of geography. The explanation of the Georgia figures you cite is history. But geography, too, has its influence. Michigan was the first state to abolish capital punishment. We abolished it in 1847. Mr. SPEISER. I think it was the first jurisdiction in the Western World to abolish capital punishment. You even have a greater role than just being the first State in the Union.
Senator HART. I did not realize that. I can say all these things without appearing immodest. I did not get to Michigan until I got out of law school. So I did not have anything to do with it. It happened in 1947. But our murder rate is substantially lower than Ohio's, and we are both of us in the Great Lakes Basin. We are basically the same people. We have our rural regions, and we have our highly urbanized areas. Our murder rate is much lower than Illinois in the same Great Lakes Basin with the same population. It is lower than Indiana, in the same composition of population. But Ohio has capital punishment. Indiana does have the death penalty. Illinois does have the death penalty. You just cannot sell the idea that the death penalty has a deterrent effect.
Mr. SPEISER. Governor DiSalle gave an example of that, where there was a gangland killing in which they took their victim only a few miles from the border, and if they had gone over the border into Michigan, they would not have been subject to capital punishment, but they did not bother to. They killed their victim in Ohio. Their idea was that they really did not think they would be caught, which is generally true for that kind of premeditated murder. They are not thinking in terms of capital punishment versus noncapital punishment. But it just required a couple of minutes' effort to go over the border.
Senator HART. That is right. Toledo is almost Michigan. And that is where that killing occurred.
Well, then, if it does not deter, if that is not the reason, then the point you make overwhelms us. It is revenge. Unless you are-and I am not you know, an anthropologist or something like that, this does not get through to you. But this must be the this must be the explanation for us as a people hanging on to this earlier barbarism. It is revenge. It must be.
Mr. SPEISER. And we stand out in such stark contrast to the Western civilized countries, all of whom have abolished capital punishment, and yet we have not.
Senator HART. And yet we always admit we are the good guys. Mr. SPEISER. That is right. And we claim to be civilized. We cannot make that claim unless we abolish capital punishment.
Senator HART. All right. Well, I hope we do abolish capital punishment. We are going to. This is one of these things that the current of history is very clear on. We are going to. We are going to get right. But let us do it now, not hem and haw and find the reasons for the next 25 years not to do it. As you say, it is up to the Congress representing the American people to give leadership and voice to our desire to have this medieval practice abolished as it is in every other Western democracy.
One of the troubles is that the voices from the American people in Congress here in connection with this proposal usually do not represent the attitude of the majority of the people. Usually it is the person who is confused about this proposition for deterrence. Too often, it is the person who in so many words makes it clear that revenge is his motive, who writes us. Its always good that the American Civil Liberties Union is here in Washington to speak to reason, to make the appeal to conscience. This time it is in a position that is supported by the majority.
Mr. SPEISER. It is an uncomfortable feeling, but I am delighted to have it.
Senator HART. But you are still right, even though you speak for the majority.
Thank you very much.
Mr. SPEISER. Thank you, Mr. Chairman.
Senator HART. I will order printed in the record a number of statements that have been filed by those who have not been able to be present to testify.
(The statements follow :)
REMARKS OF THEODORE R. MCKELDIN
The pardoning power entrusted to the Governor of a State is a trust and not a gift. The Governor, if he is a conscientious man, exercises it in accordance with what he believes to be the will of the sovereign, that is to say, the people of the commonwealth. His own opinions and preferences have, of right, nothing to do with his decision in any specific case. No doubt every Governor is influenced by them sub-consciously; but if he knowingly allows them to determine his course he is not faithful to his oath of office.
Hence when I was Governor of Maryland, I did not urge some of the most profoundly important reasons for abandoning the policy of capital punishment, because those reasons are philosophical and theological, rather than political. They belong to the realm of morals; and while I believe that statecraft, to be permanently successful, must be moral, I do not believe that morality is identical with statecraft. Therefore as a Governor I did not argue the sanctity of human life either in the eyes of God or in the eyes of man. I confined myself strictly to