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the political aspects of the question, meaning by "political" those arguments that apply to the affairs of this world, without reference to the world to come.
It is enough. My experience as Governor has reinforced my belief that the strictly mundane reasons, which I have called the political reasons, for abolishing capital punishment are sufficient without considering the Ten Commandments or any other Biblical or theological teaching. They are sufficient without even considering the prisoner under sentence. The arguments against capital punishment are innumerable, but in the final analysis they can be reduced to two: first, the policy of capital punishment does not produce the good effects that the law intends; and, second, it does produce evil effects that the law does not intend. In an earlier stage of civilization revenge was frankly accepted as a function of the law, but in theory we gave that up centuries ago. The old lex talionis, "an eye for an eye and a tooth for a tooth", was repealed by the Sermon on the Mount; and if it seems at times to have been re-enacted, it was in defiance not only of religion but also of wise jurisprudence.
The function of all legal punishment, including capital punishment, is to assure the safety of the law-abiding by deterring the lawless from criminal acts. Long ago men realized that the most effective deterrence is the reformation of the criminal, and modern penology works steadily toward that end. Next to reformation is restraint, which may take any form from mere probation to life imprisonment. Infliction of the death penalty is a confession that the better methods have failed, which means that in the specific case society has failed.
But long experience has proved that the extreme penalty does not deter. Quite recently Arthur Koestler reviewed the record in a short book called "Reflections on Hanging", based on English experience but applicable to this country. He quotes a writer of just a century ago, when hangings were public in England, and picking pockets was a hanging crime. Charles Phillips, writing in 1858, says the public executions were known to be the occasions on which pickpockets reaped their richest harvests among the crowds, and explains why: "The thieves selected the moment when the strangled man was swinging above them as the happiest opportunity, because they knew that everybody's eyes were on that person and all were looking up."
Six American states have abolished the death penalty, and in not one of them has the murder rate increased appreciably. If the penalty had really been a deterrent, its abolition should have been followed by a marked increase in that crime; but nothing of the sort occurred. Penologists have an explanation. They point out that murder is practically always committed under very unusual circumstances, giving rise to an emotional stress unlikely to be repeated; and if the emotional stress is violent enuogh, nothing will deter the act.1
In short, there is no convincing evidence that the execution of one murderer ever deterred another from committing the same crime. The effect that the law intended is not achieved.
On the other hand the law imposes upon society and especially on those who enforce the will of society a responsibility that no human being ought to assume. The death penalty is the one legal punishment that is completely irrevocable and irretrievable; therefore it ought not to be inflicted by any authority except the one that is incapable of making a mistake. With regard to any other punishment a mistake can be at least partically amended, but not with this one.
It is my considered opinion that nothing can be worse for a man in high office than for him to cherish the delusion that he cannot make a mistake. It is bad for the man and it is worse for the people who live under the law that he enforces, for it tends to make him tyrannical. If it is bad for the individual, I cannot believe it is good for organized society. I believe in democracy. I believe in the political principle that the will of the majority is in all cases to prevail. But I do not believe that the people of Maryland should ever assume that it is impossible for them to be mistaken. Yet when the people, through their agents, the officers of the law, put a man to death they are making that assumption, for it is an act of finality that can never be corrected.
One of the last acts of the late Jerome Frank, one of our great federal judges, was to correct the final draft of a book which has been published under the title of "Not Guilty". In it he cites thirty-six instances in which an innocent man was convicted in an American court. These are not guesses. These are all instances in which the man's innocence was later proved so conclusively that the state released him and in many cases paid him a sum of money by way of amends.
1 As of 1958.
In a few of these cases the state itself was the victim of a fraud by perjured testimony or some other kind of crooked work. But in the great majority no deliberate fraud was involved; the witnesses intended to tell the truth and thought they were telling the truth; but their identifications were mistaken, their memories failed, or their observation was at fault. Without intending to do so, they lied an innocent man into jail, and the truth was discovered, sometimes many years later, by persons interested enough to re-examine the case. If we know that it has happened thirty-six times we have every reason to believe that it has happened in other cases in which the truth never was brought out. But once a man has been put to death, who is going to waste time re-examining his case? Occasionally a man confesses having committed a murder for which another man was executed, but such instances are exceedingly rare. As a rule, once a man is executed all interest in his case ceases; therefore we have no reliable means of forming even an intelligent guess as to how often we have executed the wrong man. The existence of thirty-six proved cases in which justice miscarried, although the sentence was not death, is horribly suggestive that the state has sometimes legally murdered innocent men.
Since there is no convincing proof that the death penalty does anything to protect law-abiding people, and since there is very convincing evidence that it can be, and sometimes has been wrongfully inflicted, the case against it would seem to be proved without mentioning the philosophical and theological arguments against it. But there is further evidence to be found in one of the arguments that advocates of capital punishment constantly use.
This is the argument that when an atrocious crime is committed, the public excitement is such that nothing less than the penalty of death will allay it, and any milder sentence would tend to create disrespect for the law.
The truth is the reverse. It is already existing disrespect for the law that demands the death penalty and the penalty tends to perpetuate and encourage that form of disrespect. It is not showing respect for the law to assume that it is an instrument of revenge. That principle is well recognized in civil cases. If it can be proved that a plaintiff brought suit merely out of spite against the defendant, the plaintiff's case is instantly thrown out and he stands in danger of being penalized for having attempted to use the courts for such a purpose. The function of the criminal law is to protect the law-abiding, not to state society's lust for revenge. Only as the protector of the lives and property of honest men does it deserve the respect and support of honest men. Hence anything that tends to associate it with the idea of vengeance impairs its dignity and subtracts from the respect that intelligent people accord it. The argument that the death penalty is needed to allay public excitement is an argument against capital punishment, not in its favor.
For these reasons, which have nothing to do with philosophy or religion, I, speaking as a former Governor of Maryland, advocated abolition of capital punishment. But I would have been less than candid if I had tried to conceal that speaking as a man, I had other reasons. I believe that the words, "Vengeance is mine, I will repay, saith the Lord", are solemn truth. I believe that the words, "Render unto God the things that are God's" are a command that has never been withdrawn. Protection of the blameless and correction of the evildoer are our responsibility, for they are activities that belong strictly to this world; but ultimate vengeance, the vengeance that sends a man out of this world into eternity, is the Lord's; and as a private citizen, not as a public official, I am in favor of rendering it into His Hands.
WILLIAM R. MOORS, ASSOCIATE MINISTER, CEDAR LANE UNITARIAN CHURCH, BETHESDA, MD., AND EXECUTIVE DIRECTOR FOR THE MARYLAND COUNCIL TO ABOLISH CAPITAL PUNISHMENT
The following data and experience from our various states regarding the use of capital punishment should be considered as evidence for abolition in our federal jurisdiction:
1. Capital crimes, particularly murder, are dependent upon factors other than the mode of punishment or threatened punishment. The use or disuse of the death penalty has little relation, if any, to the incidence of criminal homicide. There is no evidence that the abolition of capital punishment leads to an increase in willful killings or that its retention reduces or deters. The homicide
rate of our various states are obviously dependent upon demographic, cultural, economic, political, and factors other than the vague threat of death. (See Chart 1 attached)
2. Our abolition states have among the lowest homicide rates in the country. If capital punishment were a deterrent, the principal excuse for its retention, then our capital punishment states should have the lowest homicide rates. This clearly is not the case. Our southern states all of which are capital punishment states and use the death penalty most frequently have the highest homicide rates in the country (See Chart 2) Georgia, e.g., has executed more people than any other state (366 out of the 3,859 total executions since 1930) and has consistently one of the highest homicide rates in the country (11.3 per 100,000). Again, it is obvious that regional factors determine this high rate and not the presence or absence of capital punishment.
3. As we have used the death penalty less frequently in our country the homicide rate has dropped (See Chart 3) In 1935 when we executed 199 people, the rate was 8.3 per 100,000 population (In 1933 the rate was 9.7) Last year we executed 2 persons and the homicide rate was 5.8. There has been a marked drop in the use of the death penalty since 1949 when we executed 120 people. Since that year the homicide rate has remained consistent ranging from 5.8 to 4.5. A state by state analysis indicates no discernible correlation between executions and the homicide rate. One thing seems to be clear the homicide rate is not a function of the mode of punishment.
4. It is recognized by law enforcement agencies that capital punishment has no deterrent effect for crimes of passion. Approximately 80% of our homicide are of such nature. The enraged, jealous, vengeful, drunk or mentally unstable do not deliberate the crime or any punishment. There is no reflection on future consequences. The threatened penalty is irrelevant in impulsive killing. Those who kill with malice aforethought are obviously not being deterred by the threat of possible punishment. For one thing, they do not plan to get caught. It is not the vague threat of death but certainty of apprehension and conviction which tend to deter. (See Chart 4)
We might note here that far more felons are killed by the police, the intended victim and bystanders than by the state. The felon takes a calculated risk. Furthermore, more people guilty of criminal homicide take their own lives than does the state.
5. Capital punishment is far more costly to the state than is life imprisonment for capital crimes. Some appeals have gone on for over a decade and have cost states over 2 million dollars. The Chessman case is a good example. Furthermore, it is much cheaper to incarcerate a man for life than to have capital punishment. According to Warden McGee in California "the actual costs of execution, the cost of operating the supermaximum security units, the years spent by some men in condemned status, and a pro-rata share of top level prison official's time spent in administering the unit add up to a cost substantially greater than the cost to retain them in prison the rest of their lives. When you add to this the longer trials, sanity proceedings, the automatic and other appeals, the time of the Governor and his staff-then there seems no question but that economy is on the side of abolition." At the end of 1966 there were 406 men on death row. This is not an unusual year in this respect. Several men have been there for more than 13 years! (Louisiana and Chicago) Furthermore these men are in isolation and are not doing productive work in the industries in our institutions as are other inmates.
6. Those convicted of capital crimes can be and are being rehabilitated. (See chart 5.)
7. Capital punishment is a hindrance to the judicial process. There is first the dilemma regarding plea which is placed upon the judge. With capital punishment on the books and the presiding judge realizing the extraordinary expense coupled with appeal, he often feels responsible to the citizenry to accept the second degree murder plea. Furthermore, Justice Cardoza once said that although he had studied for a life time first and second degree murder he still found them difficult to distinguish.
Secondly, there is the time and cost of impaneling a jury. Last May, e.g., in Edwardsville, Illinois, all 255 prospective jurors called during the first 9 days were dismissed, most of them because they opposed the death penalty.
Thirdly, the above example which is repeated many time each year throughout the country indicates that the accused is not being tried by a jury of his peers as
guaranteed in the 7th amendment.
Since a sizable segment of the American public is eliminated from jury duty in such cases, the jury is stacked with persons of a bias now representing a minority in our country. Harris, Roper and Gallup polls show that over 50% of the American public are opposed to the death penalty. Such a sentence and its execution are repugnant to the evolving standards of decency that indicate progress in a maturing society.
Fourthly, capital punishment states place an undue moral burden on a judge and a governor regarding sentencing and commutation.
8. Those closest to our courts and correctional systems are opposed to capital punishment. Leading Wardens, such as Lawes and Duffy and Jack Johnson of the Cook County Jail in Illinois are opposed to its use. The Department of Justice is opposed. I am submitting a statement by Ramsey Clark.
9. Finally, it is the inequity of its use that unquestionably militates against any state ever using capital punishment. It is slow, uncertain, uneven and unpredictable in its application. Since 1930, 53.7% of those executed have been Negroes who represent 10% of our population. But it is those who actually get the ultimate penalty after conviction that demonstrates its capricious nature. For example, in Pennsylvania a study of the records of all those executed show that all Negroes in the 15 to 19 age group sentenced to the chair were executed while only 22% of the whites in the same age group so sentenced were executed. In Ohio during the year 1958-59 78% of the Negroes convicted of murder were executed while only 51% of the whites convicted received the ultimate penalty. Between 1914 and 1958 439 persons were on death row in Pennsylvania. Seventeen percent of the whites were commuted, while only 6% of the Negroes were commuted. Furthermore, it is those of the lower socio-economic class who actually receive the death penalty. Few people of means ever get executed. In the state of Pennsylvania those who cannot afford their own legal counsel are executed in the ratio of 4 to 1 compared to those who can afford expert council. In the State of Ohio 44% of those who had private counsel have been commuted while only 31% of those with a court appointed attorney have been commuted. In some states no man who could afford his own attorney has ever been executed.
But it is the sporadic taking of a life here and there which is the greatest inequity regardless of race and class prejudice. Capital punishment has not been and never will be consistently and justly administered. California, e.g., which is among the top five states in number of executions until 1963 had about 600 homicides annually. Of these there were some 100 convictions for first degree murder. About one fifth of these were sentenced to death. About one tenth of these were ultimately executed. In 1963 in California there were 656 homicides. There were 208 convictions. Of these 24 were condemned to die and only one was executed. Is this the even hand of Justice? Nationally we have the same inequity. Between 1960 and 1964 there were 43,890 homicides. One hundred and forty-five men were executed! In 1962 there were 8.404 homicides, 99 were condemned to die that year. Six were executed. In 1963 there were 8.500 homicides. Eighty-one were condemned. Three committed from the courts that year were executed. In 1964 there were 9,250 homicides, 5,956 were indicted, 2,620 convicted, 89 were sentenced to death and only two committed from the courts that year were executed. In 1965 out of 9,850 homicides only 60 were sentenced to die. None of these have yet been executed. Who will dare pick the one or two who may actually receive the ultimate penalty and say they are the ones most deserving to die?
(See chart 6.)
Even those who want retribution are not being satisfied because it is obvious that all convicted do not get the death penalty and that the most guilty or brutal do not necessarily die. Gentlemen, the destruction of an occasional murderer does not protect our society. Even if it were proved that capital punishment is a deterrent it would have to be applied consistently, immediately and inexorablywhich it is not. It is correction and rehabilitation that will protect us not this kind of "Russian Roulette" and the vague threat of capital punishment. The ultimate deterrent will be to get at causes and have individuals feel and believe that murder is wrong. A state can best achieve a deterrent for capital crimes through getting at causes, correcting and rehabilitating and not by legalizing murder. It is obvious that you do not teach people not to kill by killing sporadically in return. Anyway, a state cannot ask of its citizens a morality higher than that which it can practice itself. People refrain from killing not because of a threatened penalty but because their society encourages behavior which opposes the taking of life.