proceedings. Briefly, the study was based on a questionnaire sent to all police departments in cities with more than 10,000 inhabitants, according to the 1950 census, in the six States that had no death penalty and the eleven States that bordered on them. Information was requested on the number of policemen killed by lethal weapons in the hands of criminals or suspects each year beginning with 1919 and ending with 1954. Full reports were returned by 266 cities, representing 55 per cent of the cities in the abolition States and 41 per cent of those in the capital punishment States.

"Several interesting facts appeared from an analysis of responses. First, when comparing groups of cities in the two types of States, according to the size of the cities, it was found that there was no difference in the rates of policemen killed. Second, it was found that in the north-eastern States, police were killed more rarely than in the middle west. Third, the decade of 1920-1930 had been most hazardous to the police in both types of States and the number of police killed had since then declined regularly, whether the State had the death penalty or not. It is impossible, then, to conclude that capital punishment offers a unique protection to the police not offered by life imprisonment. Recent data on police killings supplied by the F.B.I. and covering through 1963 shows no significant differences between the two classes of States used in the previously reported study.

"It may be of interest to note that nine out of ten of the police officers who responded to the questionnaire from capital punishment States believed in the protective value of the death penalty, but that three out of four of the respondents from abolition States did not share that view." (Sellin, Capital Punishment, 8 The Criminal Law Quarterly 36 (1965), at 45-47.)

PREVENTION OF HOMICIDES

We urge another and broader argument. As just pointed out, police deaths— or police safety-are determined by the pattern of law enforcement vis-a-vis crime. We believe a pattern more preventive of killings than the existing pattern can be achieved. Prevention of homicide, indeed prevention of crime generally, depends on measures taken to enlarge a spirit of non-violence in our culture. Efforts toward the reduction of poverty and discrimination, from which violence born of desperation sometimes stems, are steps in this direction. But official violence, violence by the state and its officers, is contrary to the goals of reduced violence in our society.

In this context, how does one measure the retention of capital punishment particularly for the officer killed on duty? If anything, it is an ingredient in law enforcement that makes each contact between suspect and police officer a life and death issue, by very definition. Abolition of this exception to the death penalty, from this view, would therefore be a positive contribution to the safety of the police.

It would be well if a study of this argument could be made, based upon cases, in this and other jurisdictions. As a start, we present summaries of the most recent crimes that would subject the criminals to execution under the policekilling exception and offer a few comments. The cases speak for themselves. Do they suggest that the death penalty especially for police killers protects the police and others, or that it endangers them? Are they protected by their guns? Are the police-rather than the law and the courts-encouraged to be executioners?

Nathan Jackson

On June 14, 1960 Jackson and Nora Elliot committed a robbery on the 2nd floor of a hotel in Brooklyn. Miss Elliot waited for Jackson downstairs while he, armed with a gun, was upstairs. Patrolman William J. Ramos, attracted by the shouts of the victims, attempted to enter the hotel. He met Jackson coming out and the two scuffled for a few seconds. Jackson flipped Ramos on his back and ran past him. With Miss Elliot he ran toward a parked taxi, jumped in and ordered the driver to move. The driver did not. Ramos recovered, ran to the back door of the cab, inserted his hands through the open window, and pulled Jackson out. Jackson was pinned against the taxi. Miss Elliot picked up Ramos' nightstick and hit him once or twice, yelling, "Kill him! kill him!" Patrolman Ramos fell to the floor stunned and Jackson stood over him. Ptl. Ramos twisted around to reach for his gun and Jackson, holding his own gun, screamed "Don't be a hero" or words to that effect, once or twice. Nevertheless, Ptl. Ramos took

his pistol from the holster, shot Jackson at least once (probably in the stomach) whereupon Jackson shot Ptl. Ramos probably 3 times. Ptl. Ramos shot again, Jackson staggered away, commandeered a taxi and was taken to a hospital.

Here we note that a robbery was turned into a killing, although the robber did not intend to and made every effort to avoid killing. When encountered by the police officer he attempted only to escape. When the police officer caught the robber, he did not attempt to arrest him but fought with the robber. When the officer was apparently defenseless on the ground, the armed robber did not shoot him; and he made an effort to deter the police officer from killing. A reasonable interpretation of the fast-moving event is that he was demonstrating a willingness to surrender rather than kill. One thing is evident. The death penalty was irrelevant here except for the possibility that it may have encouraged the officer in his pursuit of a life and death solution on the spot.

Jesus Negron, Reuben Ortiz

On May 29, 1963 Officer George Crane and his partner, Officer Paul diGiano, went to a house on East 105th Street to check a report of a prowler. Officer Crane started up the fire escape of the 6-story tenement, his partner diGiano up the inside stairs. As he reached the fifth floor, diGiano heard shots above him, rushed to the rain-swept roof, and found Crane dying. He had been shot with his own gun, later found beneath a stairway in a nearby house. Twelve hours later police announced the capture of Negron and Ortiz, stating that they admitted the killing. It was said that Negron was fleeing across the rooftops when Crane reached the top of the fire escape. Crane called to Negron to stop and he halted. Crane did not notice Ortiz lurking behind a nearby stair exit. Ortiz suddenly spring on Crane, tackled him from the rear, grabbed his gun and pumped six bullets into the body of the fallen patrolman. Both fled before diGiano reached the roof.

Both Negron and Ortiz charged they were beaten by the police to confess, and offered alibi evidence at the first trial, which ended in the jury failing to reach a verdict. But assuming the accuracy of the account, the death of the officer was not intended by the defendants, who were apparently not armed. Even if one argued that the death penalty may have induced Negron and Ortiz to go unarmed, the arrest situation, the attempt to capture and the attempt to escape, had their own motion, and one can say again-the death penalty was irrelevant in these circumstances.

Jerome Rosenberg and Anthony Portelli

On May 18, 1962, at 3:30 p.m., two New York City police detectives, Luke Fallon and John Finnegan, entered a wholesale tobacco establishment to make a purchase. Shortly after they left, two bandits wearing hats, sunglasses, holding handkerchiefs over their faces and carrying guns, entered the store. They waved the proprietors and several employees into a storeroom and locked them in. One rifled the cash register. One of the owners was brought out of the storeroom to the office, in a search for more money. A few moments later there was a single shot, which hurt no one and which the bandit said was an accident, and told them not to worry.

Moments after the two police officers entered the store, evidently suspecting that something was amiss. One shot was fired, perhaps by Detective Fallon, who was killed with a gun in his hand. The single shot was followed by a volley of 8 or 10 shots. In this latter shooting, the officer was killed.

The circumstances around the grouping of the owners and employees negate any desire by the bandits to shoot. They shot when the shooting started. At that point, the possibility of a death sentence did not stay their hand.

FELONY-MURDER

The 1965 abolition act, despite its two exceptions, achieved another notable reform. It abolished felony-murder as a capital offense. In doing this, it joined a number of other states that had already done so, even though some of these states retained the death penalty for premeditated murder.

The distinction between premeditated murder and so-called "felony-murder" is well understood. The former is deemed the more reprehensible act, not only because it involves an intent to kill, but also because the fenoy-murder involves a killing that is accidental. The intent involved is to commit a felony other than a killing; that is a felony that is not a capital crime, not premeditated murder.

The felony-murder doctrine has been called an anachronism ("Felony Murder as a First Degree Offense: An Anachronism Retained," 66 Yale Law Journal 427 (1957).).

The amendment of 1965 abolishing the felony-murder concept was a valid part of the abolition spirit of the legislature of the state. In its foreword to the 1965 Revised Penal Code, the Commission on Revision of the Penal Law and Criminal Code stated that "In several fields, such as those dealing with principles of culpability, sentences and homicide, changes of a fundamental nature have been wrought upon the theory that the existing law is rooted in outmoded nineteenth century theories and requires a thoroughgoing alteration of basic conceptual foudnations in order to bring it into step with modern sociological, psychological and penological thinking."

In restoring felony-murder as a capital offense when the person killed is a police officer, does the 1966 act protect the police officer any more than the exception in the 1965 act does? It might be argued that the exception in the 1965 act that made killing of a police officer a capital crime was for the protection of men exposed to some particular danger. The facts contradict such logic. But to make felony-murder of a police officer a capital crime does not even have the logic. The felon has no intent to kill-which is presumably what the death penalty attempts to deter. Surely no additional protection is added by making felonymurder a capital offense. But, making felony-murder a capital offense does have an effect on the police officer. If he is under the belief that the death penalty protects him when he is making an arrest for a felony, he is, if anything, less likely to use the fullest guile and skill in making the arrest. Instead of police skill, there may be reliance on the death penalty as protection.

But the studies show that the death penalty is not such a protection, just as it is not a deterrent to other murders. Again, to make felony-murder a capital offense contributes to making felony arrests more dangerous to life for both felon and police officer. Quite to the contrary of the presumed additional protection to the officer, it probably works the other way, exposing the officer to greater risk.

III. ABOLITION OF THE DEATH PENALTY AND THE PREVENTION OF HOMICIDES

In our earlier brief to the Commission, we documented the hypothesis that the death penalty is often an incitement to murder, perhaps more so than it is a deterrent in other cases. When the death penalty was applicable to all murders, there was no particular focus on police work. At present there is. The message conveyed by the existing death penalty law is that anly criminal is facing a life or death situation, since if an officer is murdered, he faces the death penalty. When the death penalty existed for all murders, neither the officer nor the criminal had a consciousness of something special in that crime. The 1965 law changes that.

With what effect: The criminal, who is hardly a student of the law, may not know about the present law; and if he does, it is no different than it was before. Murder involved the possibility of the death penalty; murder of the police officer still does. But the police are well aware of the special focus, which tells them that the violent support by the state will ensue if one of their number is killed. There is, in fact, a serious problem of violence in connection with deadly weapons and law enforcement. Each police officer is armed with a gun. A gun is a potential death instrument, yet almost every day the press reports an incident in which a gun was used by a police officer.

The armed police officer has a dangerous sense of power. A police officer engaged in arresting a robber is, perhaps with the belief that the death penalty will protect him, more likely to use his gun. Intentional, tactical violence on his part is inherent in his being armed, and supported by making only the murder of a police officer a capital crime.

Abolition is thus a contribution to prevention of homicides by police, and of police. This rationale supports and is supported by the data gathered by Professor Sellin and others, showing a somewhat better safety record for police in states with total abolition.

IV. MURDER OF A GUARD BY A LIFE TERM PRISONER

The Commission's staff study divided voluntary murders into four groups, concluding that life imprisonment was as effective a deterrent as death for three of the groups. It then discussed "a fourth though very limited category to

which life imprisonment is not calculated to pose a serious deterrent threat. A prisoner serving a life sentence-at least a genuine 'life sentence'-is hardly likely to refrain from killing a guard or a fellow prisoner through fear of another life sentence. It is true that most 'life' sentences are such only from the standpoint of the maximum terms, and carry minimum terms involving parole eligibility after a given period of time. The average parole eligibility period is about fourteen years for the United States as a whole, but almost twenty-seven years for New York State.

"The shorter the parole eligibility period and the closer a prisoner approaches it, of course, the greater deterrent to murder is another life sentence' and the less is the need for the death penalty in this situation. Even with a relatively long period like that of New York, another 'life sentence' might be deemed an adequate deterrent to those with many years of prison service behind them, though perhaps not to those in the early years of their terms." (The staff report points out that North Dakota and Rhode Island though abolishing capital punishment for murder in general, have retained it for the "lifer" alone, but it provides no information of experience in those states.)

The staff study then tests this argument against experience. The various studies are consistent in reporting that paroled murderers rarely commit further crimes of violence, and a homicide is almost unheard of. The study of New York's experience has the most interest:

"The most pertinent figures resulting from the New York study show that, during a period of from 1930 through 1961, sixty-three first degree murder prisoners were released on parole; that three of these were returned as "effective delinquents; that two were found guilty of technical parole violations; and that one was convicted of burglary. . . . In line with other large states previously mentioned (California, Ohio and Pennsylvania), New York's murder parolees were found to have a much lower crime conviction rate, than non-murder parolees. During a period of from 1948 to 1957, 7.2 per cent of the first and second degree murder prisoners paroled were convicted of crimes after release. The figure for the non-murder group was 20.3 per cent.

"The foregoing figures would appear to justify the New York State Parole Division's conclusions "that those convicted of Murder First Degree (49) and Murder Second Degree are significantly better parole risks than those convicted of all other offenses." (Staff study, p. 48.)

In view of these facts, it is difficult to understand why this exception was made in the abolition bill at all. Unlike the police, who opposed abolition, wardens, who are responsible for the care of life term prisoners, generally oppose the death penalty. "Prison wardens overwhelmingly spuport abolition," states Donal E. J. MacNamara. (MacNamara, Statement Against Capital Punishment, op. cit. Bedau, p. 182, at 191, 192.)

If there were evidence that life-term prisoners are partricularly prone to murder guards, the argument for the exception might have some merit. But such killings are extremely rare. The commission cites no data. Presumably it had none. When our Committee sought to obtain data from the Department of Correction, we were informed that the Department did not have the information, and did not have the resources to bring the data together.

Since then one study of killings by prisoners has appeared. Thorsten Sellin conducted a survey of homicides and assaults in American prisons during 1964, reporting the results in an article entitled "Homicides and Assaults in American Prisons," published in Acta Criminologiae et medicinae legalis Japonica, v. 31, p. 139 (1965). Out of 51 jurisdictions receiving a questionnaire, 42 replied, providing data on the federal and state penitentiaries prisoners where murderers are generally confined. No replies were received from nine states, including California, Maryland, New York, Florida and Louisiana.

What were the findings? In 30 states there were no prison homicides in 1964. There were 26 in 14 states and the federal system. All of the victims were inmates. Most of the killings were by prisoners not serving life term. The crimes for which the killers were serving terms were burgulary (5), robbery (4), grand larceny (3), kidnapping, auto theft, importing narcotics, and forgery, one each. An armed robber under death sentence and one under life sentence together killed three inmates in Georgia. Two killings, one in Ohio and one in Mississippi were committed by inmates serving life terms for capital murder; one in West Virginia by an inmate under life sentence as an habitual criminal; one in North Carolina and one in Pennsylvania by prisoners serving long terms of years for non-capital

murder; and one in Michigan by an inmate serving time (apparently not life) for manslaughter. Of the 26 cases, 5 were thus homicides by persons under sentence for murder or manslaughter. Of these five, four were in capital punishment states. The fifth (the manslaughter prisoner) was in an abolition state, Michigan.

What conclusions can be drawn? (1) The data support the position that the death penalty played no preventive role in the killings. All but two occurred in death penalty states (the Michigan prisoner, and another by a prisoner serving a term for an unarmed robbery). As Sellin says, "These data surely cannot support any argument that life is held more cheaply in the prisons of abolition states than in prisons elsewhere." (2) Life term prisoners are not a particular threat to guards. No guard in these prisons was killed in 1964 by a prisoner.

V. CONCLUSION

The exceptions in the 1965 abolition act are without logic. They were not put in the act because of any sense of additional protection for the police or prison guards. Of all groups, these are best protected. Presumably if any group were to be "protected" by retention of the death penalty, it should be, perhaps, women, against rapists; or children. Norman Redlich pointed out ("The Death Penalty," New York Law Journal, June 1, 1965)—"These exceptions were inserted into the bill (at the urging of certain law enforcement groups) because of a belief that in two situations the death penalty was required as an additional punishment, not as a deterrent." The New York State Combined Council of Law Enforcement Officials called for additional exceptions-murders in sexual assaults and for murders of persons in a "lawful occupation." That is, they wanted no abolition bill at all, and the resulting bill of 1965 was a compromise in the face of this opposition. Governor Rockefeller, in signing the 1965 abolition bill, criticized the exceptions, saying—“If you kill a policeman, you get the electric chair . . . But if you kill a priest or minister, you get life!"

But to start on such a list is to expose not only the fallacy of the exceptions now in the New York law, but also the fallacy of capital punishment altogether. It is that basic fallacy that led to the abolition bill of 1965; and it should be made complete and absolute, for the good conscience of the state and for the better safety of all.

CAPITAL PUNISHMENT: PRO AND CON ARGUMENTS

(Joyce Vialet, Education and Public Welfare Division, Washington, D.C., August 3, 1966)

(See: S. 1760) Reference Material

SECTION 1. AGAINST CAPITAL PUNISHMENT

1. THE STATE SHOULD NOT KILL

The central argument against capital punishment may be summarized as follows: In the absence of a clearly demonstrable benefit to society, it is morally wrong and pragmatically unsound for the State to be invested with the right to take the life of its citizens.

Abolitionists argue, first, that it is morally wrong to kill, and no less so for the State than for the private individual. Michael V. DiSalle, the former Governor of Ohio, writes:

First of all, I believe that taking a human life, even to pay for a life already taken is immoral. Society, echoing the Ten Commandments, says: Thou shalt not kill. Then society illogically continues: Killing is wrong, and in order to prove it is wrong, we will kill you if you kill.

While the moral argument, based as it is on the belief in the sanctity of human life, leads some abolitionists to argue that capital punishment is wrong regardless of whether or not it benefits society, this absolute stand is unusual. The following statement by Herbert L. Packer, Professor of Law at Stanford University, is representative of the more prevalent view:

The case is not that the sanctity of human life is an absolute but rather that it is a highly cherished value that should give way only upon a persuasive show

1 Michael V. DiSalle, The Power of Life or Death (1965), p. 6.