Page images

Bulletin Almanac, 1959. Philadelphia: The Evening and Sunday Bulletin, 1960. Bulletin Almanac, 1966. Philadelphia: The Evening and Sunday Bulletin, 1967. Cobin, Herbert L., Cobin Report. A brochure containing various studies and statements regarding capital punishment, 1957.

Delaware Code Annotated. Title II, Volume 7, "Crimes and Criminal Procedures," Brooklyn: Edward Thompson Co., 1953.

DiSalle, Michael V., The Power of Life or Death. New York: Random House, 1965.

Evening Journal, Wilmington, Delaware, February 9, 1966.

Goldfield, Edwin D. (Director) County and City Data Book, 1962. Washington, D.C.: U.S. Government Printing Office, 1962.

Johnston, Norman, Leonard Savitz, and Marvin E. Wolfgang. The Sociology of Punishment and Correction, New York: John Wiley and Sons. Inc., 1962. Joyce, James A., Capital Punishment, A World View. New York: T. Nelson, 1961. McClellan, Grant S. (ed.) Capital Punishment. New York: H. W. Wilson Company, 1961.

Morning News, Wilmington, Delaware, June 2, 1967.

Sellin, Thorsten (ed.). Murder and the Penalty of Death. Philadelphia: The Annals of the American Academy of Political and Social Sciences. Volume 284, November, 1952.

Sellin, Thorsten (ed.). Capital Punishment. New York: Harper & Row, Publisher, Inc., 1967.

The State Laws of Delaware, Volume LI, Milford, Del.: Milford Chronicle Publishing Co., 1957.


In opposing the death penalty, I do not represent the Catholic Church. I am speaking only for myself, one Catholic priest, but I hope reasonably trustworthy in moral theology. I intend to adhere mainly to moral and ethical considerations with the sole purpose of persuading some who share my moral views that they can safely vote against the death penalty without violation of conscience. I would like everybody to vote for abolition.

We no longer discuss the question of the right of the state to inflict torture, or of the right of persons to own other persons in slavery.

By reason of his spiritual nature, the individual person, though also a member of society, has an inalienable and personal dignity of his own. The spiritual dignity of the human person gives man being and status as a whole, not as a part, as an end in himself, not as a means to the social good. Man is a political being and as political is part of society. But as man, as person, he is beyond politics and beyond society.

If you consider the moral order from God's point of view, as the order imposed on the world by devine law, then it is impossible for any act of man to reverse, or disturb, or violate that order. To say that man's action can disturb the eternal serenity of God's plan would be to make God dependent on finite human causality. The eternal tranquillity of God's moral order cannot be disturbed by crime. The thought of a moral order disturbed by sin is useful and valid from purely human point of view, for repentance and amendment; but no amount of punishment can set things right with God's plan, because no amount of sin or crime can set things wrong.

For this reason, I would hold that no legislator need think he ought to vote for the death penalty on the ground that a lesser penalty would bring about a subversion of the moral order or entail a defeat of the goodness of God.

We do not think of the death penalty as revenge. The thoughts of retribution and of retaliation are surely present, and they have a certain human validity. But considered in itself the retribution theory is thought outmoded and barbarous. That is the reason why retribution, though present in everyone's thinking, is invariably supported by arguments relating to consequences, such as deterrence of potential offenders and moral education of the public.

What is to be said about punishment as the payment of a debt to society? A crime is a violation of legal justice, the obligation of the citizen to observe the law. Crimes, unlike individual debts, do not carry with them the obligation to make precise and mathematically exact repayment. Moral theology, even where it supports capital punishment, does not at all regard the death penalty

as a payment of life for life. The value of a human life is not measurable. Punishment, whether death or some lesser penalty, is not the exaction of a debt, but the rightful action of society for its own protection, to express moral condemnation of crime, and so far as possible to defeat crime and annul its evil effects.

As for the death penalty as the payment of a debt to society: it is nothing but a metaphor, and legislators might disregard this phrase.

The basic and most fundamental purpose of punishment is the self-defense of society against crime. Beyond this, the good consequence of punishment are said to be deterrent, reformatory, and preventive. If I take up here briefly the tired question of deterrence, I do this not as an expert on the criminology of the thing, but as a moralist going to the question of reasonableness, which is the ethical and moral norm.

In an excellent and beautifully reasoned book (A. C. Ewing, The Morality of Punishment), neither for nor against capital punishment, indeed not dealing with this subject, the author makes the following statements about deterrence: "For the end of deterrence to be achieved it is necessary in the first place, that punishment should be at least likely to follow the crime. However severe punishments were, their deterrent effect would be comparatively slight if an offender had, say, a ten-to-one chance of escaping conviction" (p. 49). "The best way of deterring is not by severity but by making conviction almost certain" (p. 58). "The extreme severity of a penal code may easily make people unwilling to cooperate in carrying it out, so that the deterrent effect of the extra severity is quite outweighed by the increased hope of immunity" (p. 59).

These statements apply to the American experience. We might have as many as ten thousand non-negligent homicides in a given year, prosecution for murder in the hundreds, and as few as fifty (and growing fewer) death sentences carried out. The sentences are not for crimes of that given year, of course, but the crimes go back five, ten, or even twenty years, while the convicts wait in the condemned cells and their apepals shuttle between the state and federal courts. But the proportion of murder to execution is not ten-to-one, as in the statement quoted above, but more like two-hundred-to-one.

Certainty and quickness are lacking. The American people and the appellate system clearly do not want quickness. An advocate of the death penalty might say that the thing to do is to speed it up, make it more effective, kill more, instead of abolishing it; but I would consider this view unreasonable at the very least, as opposed to the clear and legitimate preference of the people and the courts.

A similar objection might be made to a proposal to keep the penalty in the criminal code, for the purpose of deterring whom it will, with full knowledge that it will be rarely executed. This solution leaves the penalty as a rock of stumbling, it increases the notion of arbitrariness and blind chance, and it places an inequitable burden on juries, judges, and governors.

Now I come to the close of my argument by discussing a central thesis in the ethical theory of the philosopher Jacques Maritain. It is this, that the moral law and our knowledge of the moral law are not one and the same thing. The law of human nature exists whole and entire in the mind of God, and God communicates His law to human reason. But at no time do we possess it fully: we learn the prescriptions of the moral law gradually, with danger of decline as well as certainty of progress. Governments are obligated by the law of human nature, or rather the persons who have the care of governing are so obligated; and the principle of gradual enlightenment applies to officials as well as to private persons.

"The knowledge of these moral laws is a light acquired slowly and with difficulty, if we make exception of the general principle that good is to be done and evil avoided" (Maritain).

There is nothing astonishing in the fact that knowledge of the moral law should come slowly. "Is it not evident that the laws which regulate the whole of nature are understood wholly only by the Author of nature?"

These thoughts are applicable to the death penalty. We see clearly a history of progressive mitigation, in the elimination of the more barbaric cruelties, in the reduction in number and kind of capital offenses, in the greatest possible humanization consistent with the terrible fact, even in the growing reluctance of people to inflict the penalty where it exists in law. But at the same time we may think that progressive mitigation shows a grouping of mankind towards a better realization of the moral law, of what God actually wants us to do.

"But the stain on the origin of our moral science has caused our knowledge of good and evil to be not the best possible."

This stain lies all about the death penalty. Not sinful, not evil, the history of the death penalty is however stained with evil and evil-connected. We recall the brutal comments attributed to the notorious hanging judges, we have heard of the demoralization of prisons at execution times, and we know from observation and the press of the evil sensation of the vengeful public. On these grounds, if abolition gives us one good chance to get the good of punishment and get rid of these evils, it is worth the try.

Jesus Christ, the most pure, the Founder of our faith, was a victim of the death penalty. I am not closing with this image with the intention of softening or sentimentalizing the moral issue. I realize quite well that the good often requires tough decision and stringent action. But I want to raise the question as to our view of His approval. So much slaughter has been done in the name and under the cover of religion that it is time the goodness and mildness of Jesus had their say. The cloak of religion has covered both the just and the unjust. The false priests buzzed about the martyrs; the prison chaplain hears the last confession of the condemned murderer. I can see where a person might hold the view reluctantly, regretfully, sorrowfully, that the miserable state of society requires the penalty of death for crime. But to put this under God, to connect it up with His will and His law, is intolerable. I think God wants it out.

Washington, D.C., July 22, 1968.

Chairman, Subcommittee on Criminal Laws and Procedures,
Senate Office Building, Washington, D.C.

DEAR SENATOR MCCLELLAN: On behalf of the International Union UAW, I am submitting the attached statement relative to S. 1760-a bill to abolish the federal death penalty.

We appreciate the opportunity to submit our statement to your subcommittee. Sincerely yours,

PAUL A. WAGNER, Community Action Department.


The UAW support S. 1760, a bill to abolish the federal death penalty. We support it because capital punishment is nothing more than a cruel anachronism in today's civilized world.


The UAW represents more than a million and a quarter industrial workers in many states. It has been mandated by its membership at successive conventions to concern itself with the great issues of our time and to work in every way to improve the quality of American life. We believe this bill offers the Congress a unique opportunity to contribute significantly to the realization of the American ideal, "equal justice under law". That is why a labor union joins the distinguished church leaders, humanitarians and penologists who urge you to act favorably on this bill.


More than thirty nations have abolished capital punishment. The last country to take this humanitarian action was Great Britain, which abolished the death penalty in 1965. Eight states have passed laws eliminating capital punishment. It is time for the United States to join the ranks of progressive nations of passing S. 1760 which will stop the killing of citizens by the Federal Government.


The record shows that the deterrent effect popularly ascribed to the death penalty is, in all probability, an utter fiction. Many homicides are committed in a rage, others in the course of a commission of another crime and, perhaps, most

murderers are mentally or emotionally unstable. Patently, those who commit crimes of passion and spur-of-the-moment murders do not consider the penalty before they act. Neither do those who are phychopathic or psychoneurotic. A British Royal Commission of 1886 found that 164 of 167 persons scheduled to be executed had previously witnessed executions and were not deterred. The truth is that executions do not deter crimes.


Capital punishment is not only barbaric and perhaps "cruel and unusual punishment" under the Constitution in the light of contemporary values; it is often a tool of oppression. The death penalty falls heaviest on the poor and is, therefore, in practice, uneven justice, offensive to the egalitarian values of a free society. James V. Bennett, former Director of the Federal Bureau of Prisons, has written:

"Today, it is chiefly the indigent, the friendless, the Negro and the mentally ill who are doomed to death." (Harpers, April 1964)

The late Warden Lawes of Sing Sing stated that:

"The defendant of wealth and position never goes to the electric chair or to the gallows."

The UAW urges that the time has come for America to say that it cannot live with a system of the administration of justice which is in application, essentially unjust. Moreover, injustice is compounded by the impossibility of the correction of error when the occasional innocent man is executed. This government should never execute an innocent man, and the only way to make sure that this can never happen is to eliminate the death penalty.

Finally, our society has moved away from the philosophy of vengeful punishment toward the more civilized approach of rehabilitation and crime prevention. Capital punishment is completely inconsistent with the civilized idea of redemptive justice. The Federal Government should move now to abolish the federal death penalty by passing S. 1760. To refuse to act now would be to say to the world that the United States is not yet ready to adopt as humane a penology as Australia, Great Britain, Italy, the Federal Republic of Germany and many other countries. Our heritage is such that we should be in the forefront of the progressive nations in the field of penology as well as every other field.

Oklahoma City, Okla., August 22, 1966.

The White House, Washington, D.C.

MY DEAR MR. PRESIDENT: Recently I discussed several issues of national concern with people who are among your most dedicated supporters. They have encouraged me to communicate directly with you.

In the past, physical scientists have written to Presidents on matters that might be termed explosive. For a behavioral scientist to offer suggestions on explosive problems in the field of human relations is surely appropriate today. My first suggestion, the subject of this letter, is timely, vital, and will cost not a cent. Yet, if you act upon it, the day may come when that action will be cited as a prime example of your greatness as a President.

At a time and in a world-when there are many who cry that the United States of America shows callous unconcern for human life and is sick with destructiveness and violence, the President could make one public statement that would have an enormous impact for the good. He could say:

"There is no country that is more concerned with the sanctity of each human life than this one, and no person who has greater reverence for human life than the President of the United States.

"In an age when the killing of people for a variety of purposes is still held to be the prerogative of governments, our democracy-like many others—has been turning increasingly away from the death penalty. Last year there were only seven executions in the United States, and during the last few months four more of our states have abolished capital punishment making a new total of thirteen. "We know that those nations and our own States that have set aside the firing squad, the electric chair, the gas chamber, and the gallows, have been rewarded by a decrease in crimes of violence compared with their neighbors.

"I believe the time has come that the American people no longer want to take the life of a helpless captive in cold blood, no matter what the provocation. "Therefore I am calling upon the Congress to pass necessary legislation to abolish the death penalty for any cause under Federal law, and it is my sincere hope that some day soon all of the fifty United States shall have eliminated this ancient ritual of vengeance."

Enclosed for your interest is a paper I recently prepared for professional people, urging them to exercise leadership on this issue. If you will provide such leadership now, it not only will provide a splendid example for others, but also it will mark you as a man who tempers power with mercy, righteousness with wisdom, and civic responsibility with scientific enlightenment.

Very respectfully yours,

LOUIS JOLYON WEST, M.D., Professor of Psychiatry, Head of the Department.

[blocks in formation]

According to the Gallup Poll the majority of Americans no longer favor capital punishment (1). Yet only 133 of our 50 States have essentially eliminated it (four in the last year). The Federal Government and the District of Columbia still retain it. Meanwhile, although the death penalty is widely used in Communist countries, it has been virtually abandoned by most of the Western democracies except for the United States and France.

Most people in this country know very little about the death penalty. They are likely to have strong opinions about it-for or against-but few facts (2). Moreover, it is uncommon for someone to seek spontaneously to inform himself on the subject. In fact, there is a puzzling resistance to enlightenment, for which an explanation will be proposed.

When experience requires someone to deal with capital punishment directly, he is likely to become opposed to it. Thus approximately 90% of prison wardens come to support indictments of it by such leaders among them as Lewis E. Lawes of Sing-Sing and Clinton T. Duffy of San Quentin (3).

The man ultimately responsible for an execution possesses a terrible and hateful power, which has been analyzed and condemned by former Governor Michael V. DiSalle of Ohio (4). Governor Edmund G. Brown of California (himself a former district attorney and attorney general) in 1960 told the California legislature:

"The naked simple fact is that the death penalty has been a gross failure. Beyond its horror and incivility, it has neither protected the innocent nor deterred the wicked. The recurrent spectacle of publicly sanctioned killing has cheapened human life and dignity without the redeeming grace which comes from justice meted out swiftly, evenly, humanely."

I went through a war (including periods of service in the infantry and the military police), a medical education, and a psychiatric residency with no particular opinion on capital punishment. If asked I would probably have replied that I was for vigorous law enforcement and prompt justice, including the death penalty wherever the law specified. However, an experience as medical examiner at an execution transformed me into a student of the problem.

In one hour on a hot Iowa morning in 1952 I learned that a typical chronic schizophrenic man can qualify for hanging; that those who came to watch are likely to have a strange and unhealthy glitter in their eyes; that a man hits the end of a rope with a terrible crack; that he doesn't just dangle there but is likely to writhe for some time; and that the heart stops reluctantly, as the medical examiner discovers, listening with a stethoscope all the while. As I listened (for an interminable 12 minutes and 23 seconds) there was time for me

1 Submitted for publication to The Journal of the American Medical Association.

2 Professor and Head, Department of Psychiatry, Neurology and Behavioral Sciences, University of Oklahoma School of Medicine, 800 Northeast 13th Street, Oklahoma City, Oklahoma 73104.

3 Several of these will nominally retain it for special circumstances, ranging from the murder of a policeman or prison guard to "treason.'

« PreviousContinue »