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to ask myself a host of troublesome questions. For the past 14 years I have been seeking some answers. This paper might be considered a progress report on the search.
I now believe that any physician who objectively studies the subject will be likely to arrive at the firm conclusion that the death penalty should be abolished. True, he will be shocked at the horrors that violent criminals are capable of perpetrating; and he will be filled with concern and sympathy for their victims. He will ask himself, "Suppose my daughter were raped and butchered?" The very question fills me with the passion of vengeance, and acquaints me with the power of my own potentialities for murder!
But the prisoner convicted of a capital crime is confined; he is safe from vengeful personal retaliation; and society is safe from him. Should society exterminate him, now, deliberately and righteously? When the scholar considers this question in depth, the weight of evidence makes itself felt. It moves him to the viewpoint held by the vast majority, not only of wardens and Governors, but of criminologists, jurists, and those social and behavioral scientists who have surveyed the same ground (5). Briefly this viewpoint is as follows:
The death penalty should be abolished because it is: (1) Out-dated. It is clear that we are rapidly moving toward de facto abolition despite the existing laws, since the number of executions tends to decline year after year. Last year there were more than 7000 capital crimes in the United States, and only seven executions. The Attorney General of the United States recently stated that the death penalty is passé. (2) Immoral. No murder is as cold-blooded as legal execution. It poses a constant example of violence, and violates the modern teachings of most major religions. Most of the Protestant churches, the Orthodox and Reformed Jews, and many Roman Catholic officials have passed resolutions condemning capital punishment. (3) Wasteful.
The cost of the apparatus and maintenance of the procedures attending the death penalty, including death row and the endless appeals and legal machinery, far outweighs the expense of maintaining in prison the tiny fraction of criminals who would otherwise be slain. One man's execution recently cost California more than $500,000. And many of those whose lives might be spared, like "The Birdman of Alcatraz" who was a double murderer, can be useful even though they spend their lives in prison. (4) Cruel. Everyone must die, but only the condemned prisoner is subjected to the terrible agony of prolonged waiting-sometimes for years, tormented by hope to be deliberately slaughtered by a self-righteous society. This torture is harsher than the thumbscrew and rack. (5) Inhuman. The killing of a helpless captive is a brutally degrading experience. If those alone who have participated in an execution could vote on the death penalty, it would be abolished tomorrow. (6) Unfair. Of all the uncertain manifestations of justice, capital punishment is the most inequitable. It is primarily carried out against the destitute, forlorn, and forgotten. A rich white Protestant is practically safe from it. A complicated insanity plea may save the well-heeled, while the penniless psychotic goes to the gallows. Members of racial and cultural minority groups suffer most. The hundreds of extraneous factors, including geography, that decide whether a convicted man will actually live or die, makes capital punishment a ghastly, brainless lottery. (7) Irrevocable. Justice can miscarry.
At least two states were shocked into outlawing the death penalty only after executing men later shown to be innocent. A prisoner discovered to be blameless can be freed; but neither release nor restitution is possible for a corpse. (8) Obstructive. Proved a failure, capital punishment now undermines attempts to apply modern criminology to our society's needs. Professor Sheldon Glueck of Harvard has stated, "The presence of the death penalty as the keystone of our penal system bedevils the administration of criminal justice all the way down the line and is stumbling block in the path of general reform and of the treatment of crime and criminals." (9) Useless. After seeing 150 executions one prison warden said, "I have yet to meet the man who let the thought of (execution) stop him from committing murder." Its failure as a deterrent to crime is highlighted by the fact that the murder rate (including fatal attacks on police officers) is actually lower in those states and countries that have eliminated it (10) Dangerous. The public fails to realize that today fewer than one murderer in a thousand will be executed. Meanwhile society feels protected, and fails to legis
late indeterminate sentences and penal reforms. Dangerous criminals are thus more likely to make their way back back into a society which retains the illusion of safety engendered by the death penalty's false promise.
There are some additional complexities of the problem of the death penalty that are particularly significant to physicians. Most of us are likely to find ourselves in the abolitionist camp by virtue of the arguments listed above. However there are five more factors which, if carefully considered by our profession, should serve to move us from passive disapproval to militant antagonism against capital punishment.
1. The physician is sworn to preserve life. There have been ironic occasions when physicians have worked long and hard to keep a man alive for the hangman. Of course the rationale for this lies in the possibility of last-minute clemency. Furthermore, the doctor lives closer to the issue of life and death; he knows from personal experience how remarkable is the investment of cold flesh and bones with the vital spark; to preserve this spark he has put aside even euthenasia. As Dr. Karl Menninger has put it: "To a physician discussing the wiser treatment of our fellow men it seems hardly necessary to add that under no circumstances should we kill them. It was never considered right for doctors to kill their patients, no matter how hopeless their condition. True, some patients in state institutions have undoubtedly been executed without benefit of sentence. They were a nuisance, expensive to keep and dangerous to release. Various people took it upon themselves to put an end to the matter, and I have even heard them boast of it. The Hitler regime had the same philosophy. But in most civilized countries today we have a higher opinion of the rights of the individual and of the limits to the state's power." (6)
2. Capital punishment breeds murder. Philosophers and social scientists have long contended that the legal extermination of human beings in any society generates a profound tendency among the citizens to accept killing as a solution to human problems (7) No matter how ultimate that solution may seem, or how rarely it is employed, its official existence symbolizes the fact that it is permissible even desirable-to resolve issues by murder; it is only necessary to define the criteria for justification. The late Albert Camus steadfastly held that it would be necessary for mankind to eliminate the death penalty before we could ever hope to eliminate war (8) and it is remarkable that no nation which has wholly and permanently abolished capital punishment has ever started a war.
But there is an even more specific way in which the death penalty breeds murder. It becomes more than a symbol. It becomes a promise, a contract, a covenant between society and certain warped mentalities who are moved to kill. These murders are discovered by the psychiatric examiner to be, consciously or unconsciously, attempting suicide by homicide.
Recently an Oklahoma truck driver had parked to have lunch in a Texas roadside cafe. A total stranger-a farmer from nearby-walked through the door and blew him in half with a shotgun. When the police finally disarmed the man and asked why he had done it, he replied, "I was just tired of living."
In 1964 Howard Otis Lowery, a life-term convict in an Oklahoma prison formally requested a judge to send him to the electric chair after a District Court jury found him sane following a prison escape and a spree of violence. He said that if he could not get the death penalty from the jury he would get it from another, and complained that officials had failed to live up to an agreement to give him death in the electric chair when he pleaded guilty to a previous murder charge in 1961.
Another murderer, James French, asked for the death penalty after he wantonly killed a motorist who gave him a ride while hitch-hiking through Oklahoma in 1958. However he was "betrayed" by his Court-appointed attorney who pleaded him guilty and got him a life sentence instead of the requested execution. Three years later French strangled his cell-mate for no obvious reason: a deliberate, premeditated slaying. He has been convicted three times for that crime, declared legally sane and sentenced to death each time. This sentence he deliberately invites in well-organized, literate epistles to the Courts and in provocative challenges to the jurors. During a psychiatric examination in 1965 French admitted to me that he had seriously attempted suicide several times in the past but "chickened out" at the last minute, and that a basic motive in his murdering
another prisoner was to force the State to deliver the electrocution to which he feels entitled and which he deeply desires.
Many other examples may be found in which the promise of the death penalty consciously or unconsciously invites violence. Sellin reviewed a number of them (9). Wertham's analysis of Robert Irwin, who attempted suicide by murder, is a classic (10). Some who seek execution even borrow somebody's else's murder! A few months ago Joseph Shay in Miami admitted that he had falsely confessed to an unsolved murder "because I wanted to die." The intimate connection between murder and suicide was noted by Freud and has been treated extensively by Karl Menninger as well as Franz Alexander, Gregory Zilboorg, and other psychiatrists. In a recent book (11) West noted that in England nearly half of all murders are followed by suicidal attempts, of which two-thirds succeed. In Denmark, where there is no death penalty (and the murder rate is far lower than ours), 40% of all murderers subsequently commit suicide!
That the death penalty is a failure as a deterrent to murder has been demonstrated in many ways. That it is a success as an incentive to murder, either generally through its influence as symbolic representation of the acceptability of killing, or specifically in cases like those described above, is increasingly clear. It makes it easier to understand why, in the year following the re-establishment of capital punishment in formerly abolitionist Oregon in 1920, the State's homicide rate nearly doubled.
3. The death penalty tends to pervert the professional identity of the psychiatrist. The employment of psychiatrists in trials at law has gone far beyond what society expects from any other type of expert witness. This is manifest primarily in trials where the death penalty is involved. Here we find the anomaly of a physician, sworn to devote himself to the preservation of human life, dealing out opinions whereby the survival or destruction of another human being hinges on the turn of a word. Testifying for the defense, the psychiatrist's image is of either “a knight in shining armor" or a "bleeding heart." Testifying for the prosecution he is either "the conscience of society" or "an accessory to legal homicide." No matter how he may be seen on the witness stand, however, the psychiatrist who has been used this way is not functioning as a physician. Many psychiatrists refuse any longer to serve as expert witnesses, only to find themselves criticized for lack of social responsibility.
4. Death sentences create a grisly laboratory: Death Row. As a student of experimental psychopathology I have employed many techniques for inducing transient changes in the mood, thought, or behavior of normal subjects. In the scientist's laboratory such undertakings are always approached with the utmost caution and handled with many safeguards for the mental well-being of the research subject. But it seems to me that Death Row must constitute the ultimate experimental stress, in which he condemned prisoner's personality is incredibly brutalized.
Often prisoners deteriorate rapidly following the imposition of the death penalty. I have examined Jack Ruby a number of times since April 28, 1964, and by every objective medical criterion he has become grossly psychotic since he was sentenced to death. Yet the stress upon him has perhaps been rather less than that experienced by many condemned individuals who over the course of several years approach scheduled death down to the last month, or week, or minute; then live through a breath-taking reprieve only to face another horrible countdown.
Slovenko (12) points out that, while executions are decreasing in number, Death Row is growing. At the end of 1962, there were 275 prisoners under sentence of death. During 1963, 21 were executed and 91 more were sentenced to die, leaving a new total of 345 awaiting extermination.
A good many of these doomed men end up in the hands of the psychiatrist. The strain of existence on Death Row is very likely to produce behavioral aberrations ranging from malingering to acute psychotic breaks. In most States the warden will transfer such a person to the psychiatric unit of the prison or to the security area of a mental hospital. Here the prisoner is not unlikely to pass the rest of his days as a member of that vaguely defined population, "the criminally insane."
What is the psychiatrist to do with such a patient when he improves? Specify him as ready for death? In practice this almost never happens. As Menninger has put it, the psychiatrist is not likely to choose to serve as the executioner's assistant. Ironically, the ward personnel may develop the threat of sending the prisoner back to the Penitentiary for execution into a powerful restraining influence upon his behavior, thus making of him a model inmate.
Of course the question of the non-executability of the condemned man who becomes mentally ill points to the heart of the capital punishment issue. Why should he not be executed? Wouldn't it protect society as well? Wouldn't it deter others just as well? True, the psychotic prisoner is less likely to produce new evidence or participate knowledgeably in a last minute appeal, but it could well be said of a sane man, no matter how long the execution had been postponed, that he might eventually be able to devise a better defense or help his attorneys to develop new evidence-if he were kept alive. No, since the death penalty is now carried out in strictest privacy (like the loathsome act it is) there can be only one reason for sparing the condemned maniac. It is that he must not be executed unless or until he is in full possession of his mental faculties so that he can appreciate what is being done to him! This gives clear insight into the most basic motive for the execution: Revenge.
5. The psychodynamics of resistance to abolition of the dealth penalty deserves scrutiny. A formula might be proposed as follows:
The factors above the line are natural enough and to be expected in our society. When one asks why it is that enlightenment (which must develop if abolition is to come) should be growing so slowly, one discovers a trio of unconscious resistances which might be labelled, "The Scapegoat" (S), "The Sacrifical Lamb" (SL), and "The Secret Self-Deterrent" (SSD). Thus:
The Scapegoat phenomenon has been considered elsewhere at some length (7): a person whose misdeeds are discovered and punished serves through his death to expiate the guilt engendered by the crimes of all.
The Sacrificial Lamb on the other hand serves the purpose of warding off the powers of evil or danger in an uncertain universe. Society uses its occasional legal victim of the gas, the rope, or the electric chair, as a lightning rod to focus upon one outstanding sinner divine vengeance against general human sinfulness, while at the same time magically insinuating the survivors into the good graces of the Gods by the blood sacrifice. Logical arguments related to the unevenness of justice by death in this country will obviously have little effect upon such superstitious specifications. As Shirley Jackson's challenging story "The Lottery" so well reminds us, these requirements are just as well fulfilled randomly or by lot as by reason (13).
The dynamic forces involved in the Secret Self-Deterrent are related to the foregoing but have a structure of their own. Each individual must develop defenses against his own unconscious violent and destructive strivings. Into the effort he is likely to throw all of the resources that his culture provides. Developmentally, fear of punishment or retaliation plays a certain part. The average citizen senses, and strives to defend himself against, his basic instinctual kinship to the violent criminal; he fails to comprehend the significance of his own much healthier ego structure. Thus he whispers to himself, "Perhaps all that restrains me from an act of violence is fear of the talionic destruction I would bring upon myself. This must be all that restrains many others like myself. I become anxious at the prospect of eliminating the death penalty because it means I shall be forced to rely more upon my own controls and less upon expectation of punishment."
Obviously these more-or-less conscious factors will affect different individuals in different ways. From them may arise ambivalent feelings leading to all kinds of behavioral paradoxes. Thus we find on the one hand the passionate believer in capital punishment who readily admits he would never throw the switch himself and who shudders at the prospect of watching an execution. On the other hand there is the highly vocal abolitionist who cries incessantly about the horrors of legalized murder but is strangely apathetic when it come to organized action that might bring about the desired end.
What can be done to hasten the inevitable abolition of the death penalty in America? Of course continuing public information is vital. However, the importance of influential leadership cannot be under-estimated, because of the role that unconscious fear plays in resistance to abolition of capital punishment. The increased sense of security that large groups of people may feel when ministers, judges, and great public figures take a positive stand can help to swing the balance toward abolition. Men like Governors DiSalle and Brown strike important blows against the death penalty in their states, even though so far without
But resistances are stubborn. Dr. Karl Menninger has been a colossus on the scent of American psychiatry for nearly half a century, yet his stirring appeals have been insufficient to move the people of Kansas on this issue where he has moved them successfully on so many others. Four of last year's seven executions were in Kansas! Nor have voices like Menninger's inspired notable action within the medical profession. The American Dental Association has officially supported the use of toothpaste containing fluorides. Other health organizations have formally and publicly endorsed various vaccinations, mass chest X-Rays, and other measures of significance to our nation's physical health. But what has organized medicine had to say on the subject of capital punishment?
Perhaps it would not be too much to propose that physicians should assume some responsibility-as individuals, as community leaders, and as members of powerful organizations to rid our society of this ugly and dangerous anachronism. Locally, state by state, and nationally we should join systematically and vigorously with forces of enlightenment in the Law, in the Pulpit, in the Universities, and in the average American home, so that the United States might soon become one of that growing body of civilized countries which are committed by Statute to reverence for human life. In this effort the concerted influence of modern medicine, a profession which is wholly concerned with the human condition, should mobilize itself around the most basic of all human issues-the proposition that human life is so uniquely precious that it must never be needlessly destroyed.
1. Time, April 2, 1965. p. 62.
2. Gold, L. H. A Psychiatric Review of Capital Punishment. October 1961. 3. Duffy, C. T. 88 Men and 2 Women. Doubleday, New York, 1963.
4. DiSalle, M. V. The Power of Life or Death. Random House, New York. 1965. 5. Bedau, H. A. The Death Penalty in America. Doubleday (Anchor Books) New York, 1964.
6. Menninger, K. A. Verdict Guilty-Now What? in A Psychiatrist's World. The Selected Papers of Karl Menninger. (Edited by B. H. Hall) Viking Press, New York. 1959.
7. Koestler, A. Reflections on Hanging. MacMillan, New York, 1957.
8. Camus, A. Reflections on the Guillotine. Evergreen Review. 1:3, 1957, pp. 5-55. 9. Sellin, T. The Death Penalty. Philadelphia, 1959.
10. Wertham, F. The Snow of Violence. New York and London. 1949.
11. West, D. J. Murder Followed by Suicide. Harvard University Press. 1966. 12. Slovenko, R. And the Penalty is (Sometimes) Death. Antioch Review. 1964, pp. 351-364.
13. Jackson, S. Lottery or the Adventures of James Harris. Farrar. 1949.
Senator HART. Incidentally and interestingly, the number of letters that have been received since our last hearing of about 2 months ago have run 21 against the bill, 21 against the abolition of capital punish