ing that some other, more important end will thereby be served. Unless it can be shown that capital punishment serves prime social purposes that cannot otherwise be served, the claims of its proponents are unconvincing.2

Abolitionists argue, secondly, that this belief in the sanctity of the individual human life is the central value of our society and should be supported by the actions of the State. They contend that, if the institution of capital punishment does not actually undermine this value, and many believe that it does, it clearly does nothing to reinforce it. Governor Edmund G. Brown of California writes: "I oppose capital punishment, too, because it brutalizes man; because a society that takes human life cannot invest its citizens with respect for human life." A New York Herald Tribunc editorial entitled "The State Should Not Kill" puts it more strongly :

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3

"Whenever the state takes life it cheapens life. Capital punishment panders to man's basic instincts, cloaking retribution in the mantle of the law, coloring vengeance with respectability, setting a public example for private violence." Third, abolitionists argue that the State should be granted legal power to take the lives of its citizens only if this is clearly necessary for self-defense which, in the case of capital punishment, means the protection of its law-abiding citizens. In the United States, this argument takes the traditional form of the need to protect the rights of the individual against the State, and is summarized as follows by Michael V. DiSalle :

"Those of us who are interested in the freedom of the individual realize that government exists only with those powers that have been delegated to it by the people, and the more restrictions we place upon government and the exercise of the powers that have been delegated to it, the more certain we are that we will have a democratic type of society where the freedom of the individual prevails. It should certainly not be the purpose of people within a society to delegate to government any more authority than that necessary to perform its functions; I feel that the delegation of the right to take away life can only be justified when a certain purpose is to be served; that purpose might be the preservation of society itself against a threat from the outside or a threat from within.'

In general, abolitionists in the United States are more willing to grant that the death penalty would be justified by its clear necessity for the protection of "society itself against a threat from the outside or a threat from within," than are, for instance European abolitionists. The latter tend to be more concerned than American abolitionists with the danger that capital punishment will be used illegitimately by the State. A representative European view on this issue is expressed as follows by the late Albert Camus:

66

for 30 years crimes of state have vastly exceeded crimes of individuals. I shall not even mention wars-general or local. . . . I am referring here to the number of individuals killed directly by the State, a number that has grown to astronomic proportions and infinitely exceeds that of "private" murders. There are fewer and fewer men condemned by common law, and more and more men executed for political reasons. . . . It is not so much against the individual killer that our society must protect itself than, as against the State. Perhaps this equation will be reversed in another thirty years. But for the present, a legitimate defense must be made against the State, before all else. Justice and the most realistic sense of our time require taht the law protect the individual against a State given over to the follies of sectarianism and pride." "

In summary, then, most American abolitionists argue that the death penalty should stand or fall on proof that it is necessary to protect society. Furthermore, because of the moral and practical evils they see as inherent in the institution of the death penalty, abolitionists argue that the burden of proof rests with its supporters.

It is generally agreed by both sides in the capital punishment controversy that there are two ways in which the death penalty might afford society unique protection. First, it might be a more effective deterrent against major crime than life imprisonment. The deterrent issue is defined as follows by Hugo Adam Bedau:

2 Herbert L. Packer et al., “Mr. Barzun and Capital Punishment," The American Scholar (Summer 1962), p. 440.

3 Edmund G. Brown, Statement on Capital Punishment (1963), p. 2.

4 "The State Should Not Kill." New York Herald Tribune (March 27, 1960), in Capital Punishment, ed. Grant S. McClellan (1961), pp. 83-84.

5 American Bar Association, Section of Criminal Law, 1959 Proceedings (1960), pp. 5-6. • Albert Camus, "Reflections on the Guillotine", Evergreen Review (No. 3, 1957), p. 48. 39-394-70—12

"The only question [regarding deterrence] which must be settled is this: is long term imprisonment (on the assumptions that it is less savage and more easily administered by the judicial system than capital punishment) as good a deterrent for the major crimes currently punished by death? This formulation leaves open, as it should, the qeustion of how close either penalty is to a completely effective deterrent; and it does not raise the further question, as it shouldn't, whether death might be a better deterrent for certain crimes (e.g., against property) that no one would think of punishing in this way. To put it another way, the real dispute over deterrence is this: how many capital crimes, if any, have been (or might be) prevented by the threat of execution, which would not have been (or would not be) prevented by the threat of imprisonment?"

7

Second, the death penalty might be the only way of potecting society against the incorrigibly dangerous. The debate with regard to this second function centers around the issue of whether or not the death penalty is in fact necessary, whether this protection is not provided equally well by measures short of execution.

Abolitionists argue that the death penalty has failed as a deterrent and is unnecessary as a protective measure. They argue that it should be abolished because there is no demonstrable proof that it affords society the unique protection which alone would justify its retention.

II. DETERRENCE

Hugo Adam Bedau defines the doctrine of deterrence and comments on its importance in the capital punishment controversy as follows:

by far the most common way to employ a punishment as a preventative of crime is to adopt a sufficiently severe penalty so as to compel general obedience out of fear of the consequences of disobedience the classic doctrine of deterrence. Even though deterrence cannot override every other concern in formulating a rational penal philosophy, there is no doubt that the death penalty's efficacy as a deterrent is the major factual issue in dispute between abolitionists and retentionists." 8

Abolitionists argue that the death penalty's efficacy as a deterrent is, at the very least, called into serious question both by the available statistics and by the evidence of modern psychology.

A. The Statistics

In a study of the death penalty which he prepared at the request of the American Law Institute, Thorsten Sellin notes:

"Any one who carefully examines the . . . data is bound to arrive at the conclusion that the death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crimes. It has failed as a deterrent." "

Sellin analyzes the four ways in which the deterrent value of the death penalty would be evident if it, in fact existed:

"It seems reasonable to assume that if the death penalty exercises a deterrent or preventive effect on prospective murderers, the following propositions would be true:

"(a) Murders should be less frequent in states that have the death penalty than in those that have abolished it, other factors being equal. Comparisons of this nature must be made among states that are as alike as possible in all other respects-character of population, social and economic conditions, etc.-in order not to introduce factors known to influence murder rates in a serious manner but present in only one of these states.

"(b) Murders should increase when the death penalty is abolished and should decline when it is restored.

"(c) The deterrent effect should be greatest and should therefore affect murder rates most powerfully in those communities where the crime occurred and its consequences are most strongly brought home to the population.

"(d) Law enforcement officers would be safer from murderous attacks in states that have the death penalty than in those without it." 10

The Death Penalty in America, ed. Hugo Adam Bedau (1964), p. 261.

8 Bedau (ed.), op. cit., p. 260.

Thorsten Sellin, The Death Penalty (1959), p. 63.

10 Sellin, op. cit., p. 21.

In general, the various statistical studies which have been made in an attempt to test the deterrent value of capital punishment concern themselves with one or more of these four propositions.

It will be noted that the majority of the studies in this field have been conducted by Sellin. Professor Emeritus of Sociology at the University of Pennsylvania and President of the International Society of Criminology, Thorsten Sellin has been described as the "foremost statistician in the field of criminal law in the world." He was the principal consultant to Great Britain's Royal Commission on Capital Punishment as well as to the majority of other official government commissions studying this subject. Bedau notes:

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[Sellin's] evidence has managed over the past decade to convince a wide variety of legislative committees throughout the English-speaking world, and not in every case were the members of these committees initially receptive to his conclusions."

,, 12

Contiguous Jurisdictions.—Sellin's studies of the homicide rates in contiguous jurisdictions with and without the death penalty are, in Bedau's words, "the cornerstone of the case against the deterrent superiority of the death penalty over imprisonment." "13 Table 1 below shows the results of four of these studies described by Mr. Sellin as follows:

"The only fair comparison is one that takes into account regional differences and therefore compares the homicide rates of an abolitionist state with that of its neighbor states. The diagrams shown... [see below] are based on such comparisons. They show the annual size of the homicide death rate per 100,000 population for the period 1920-1958 and the general trend of the rate for each set of states compared.'

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Sellin's conclusion of the basis of these studies follows:

"The striking thing about these diagrams is that within each set of states the rates are so nearly the same annually and the trends so closely alike that if the lines were not identified with each specific state, no one would dare to guess which lines represented the abolition states

It is proper to conclude that states which are similar in the character of their population, their urban and industrial development, and their mores have similar homicide rates, whether or not they have the death penalty. In other words, the presence of the death penalty for murder in a state appears to have no more influence on its homicide rates than the absence of the penalty in a comparable state has on the rates of that state. And if our basic assumption is correct, what holds true for the homicide rates would hold true for the capital murder rates, were they obtainable.

"When it once becomes generally understood that the amount and the trends of murder depend on demographic, social, economic, and political conditions, one would realize that the explanation for rises or falls in the statistics of this crime must be sought through a study of these conditions, and that through such a study alone could any possible remedy be found. To hope that this remedy could be found in the application of the death penalty or in its introduction is to grasp at a straw." 15

Contiguous jurisdictions: Homicide death rates for Selected States 18

Abolition and the Criminality Curve in the Same Jurisdiction.-Several studies have been made on the second assumption state above by Sellin; namely that if capital punishment is a deterrent to murder, the homicide rate in a given jurisdiction should increase with the abolition of the death penalty and decrease with its restoration. Sellin has conducted such a study on the basis of the statistics available from states in this country which have abolished the death penalty. In his summary of this study, Bedau writes,

"The selection by Professor Sellin shows that in every abolition state, whether or not it later restored capital punishment, there is no correlation between the status of the death penalty and the homicide rate. This strongly suggests that in

11 California Legislature, Senate Committee on Judiciary, Hearings Report and Testimony,,, (1960), p. 65.

12 Bedau (ed.), op. cit., p. 265.

13 Bedau (ed.), op. cit., p. 263.

14 Thorsten Sellin, "Capital Punishment," Federal Probation (Sept. 1961), p. 6. See also Sellin, The Death Penalty, pp. 23-34.

15 Sellin, "Capital Punishment," p. 6.

16 Ibid.,

pp. 7-8.

the ten states that abolished the death penalty and later restored it the reasons had nothing to do with the measurable effects of death vs. imprisonment as a deterrent to murder." 17

In general, the statistics available from other countries which have either partially or totally abolished capital punishment appear to follow the same pattern: abolition is not followed by an increase in crime. The United Nations report, Capital Punishment, contains the following observation on the effects of partial abolition:

"All the information available appears to confirm that such a removal has, in fact, never been followed by a notable rise in the incidence of the crime no longer punishable with death. This observation, moreover, confirms the nineteenth century experience with respect to such offenses as theft and even robbery, forgery and counterfeiting currency, which have progressively ceased to be punishable with death: indeed, these crimes, so far from increasing, actually decreased after partial abolition." 18

With regard to total abolition, the U.N. report concludes that, "The same general observation can usually be made regarding the total abolition of the death penalty."

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The Effect of Executions on a Community.-Studies have been made on the effect of a series of executions on the capital crime rate in the community where the executions occurred. The reasoning behind these studies is described by Sellin as follows:

"If the death penalty is a deterrent, its greatest effect should be shown through executions which are well publicised. Furthermore, the effect should be most noticeable in the community where the offense occurred, where the trial aroused wide publicity and the offender lived and had relatives, friends and acquaintances."

19 20

Such a study was conducted in Philadelphia by Robert H. Dann." He compared the number of homicides occurring 60 days before and 60 days after five different executions. A total of 91 homicides occurred in the periods preceding the executions; 113 homicides occurred in the periods following them. Nineteen of the 204 homicides resulted in a sentence of first degree murder. Of these, nine occurred in the "before" period and ten occurred in the "after" period. A similar study conducted by Leonard D. Savitz in Philadelphia a number of years later yielded similar results. Savitz concluded:

"There emerges, therefore, no pattern that would indicate deterrence. . . . It can be said in summary, that the author is aware that the short period of time under analysis and the extremely small number of murders dealt with prevent conclusive findings, but we must conclude from the data at hand that there was no significant decrease or increase in the murder rate following the imposition of the death penalty on four separate occasions.

11 22

Police Safety.-The two extensive studies of the comparative safety of the police in jurisdictions with and without capital punishment do not indicate that the death penalty affords the police greater protection. Sellin conducted a major study of the comparative safety of metropolitan police, described by him as follows for the American Bar Association Section of Criminal Law:

"A few years ago, I sent a questionnaire to the chiefs of police in all cities with more than 10,000 population in the six states that at that time did not have the death penalty for murder, and in the states that bordered on themseventeen in all. I asked them to give us year by year, beginning in 1920, the number of police killed by a criminal with a lethal weapon. We got a pretty good response-47 per cent-at least from all but the big metropolitan cities; a few of these responded but not enough to really make any comparison easy. We broke the information down in groups of cities by size; there were five or six population groups, so that the large city would not distort the information gained from

17 Bedau (ed.), op. cit., pp. 333-334.

18 United Nations, Department of Economic and Social Affairs, Capital Punishment (1962), p. 54.

19 Ibid., p. 55. See also Sellin, The Death Penalty, pp. 34-50. 20 Sellin, The Death Penalty, p. 50.

21 Robert Dann, The Detterent Effect of Capital Punishment (1935); see James A. McCafferty, "Major Trends in the Use of Capital Punishment." Federal Probation (Sept. 1961), p. 20.

22 Leonard D. Savitz, "The Deterrent Effect of Capital Punishment in Philadelphia" (1958), in Bedau (ed.), op. cit., pp. 321-322. See also William F. Graves, "The Deterrent Effect of Capital Punishment in California" (1956), in Bedau (ed.), op. cit., pp. 322-332..

smaller cities. We computed rates and found to our surprise that there was no difference in the information gathered between the states that had the death penalty and those that did not have it. There were as many police killed in the states with the death penalty, considering the size of the cities involved, as in the states without the death penalty. The argument of the police on the basis of that study falls by the wayside." 23

This study indicated that the rate of police killings was in fact higher in death penalty states than in abolition states: 1.3 per 100,000 in the former, compared to 1.2 per 100,000 in the latter.2

24

A companion study of the comparative safety of state police was conducted by Donald R. Campion, S. J. Father Campion summarized his findings as follows:

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We conclude that the data available to us after a survey of half the state police forces of the United States do not lend empirical support to the claim that the existence of the death penalty in the statutes of a state provides a greater protection to the police than exists in states where that penalty has been abolished." 25

B. The Psychology of Deterrence

In the opinion of many abolitionists, the deterrent value of capital punishment has been seriously called into question by the evidence of modern psychology and penology. As the U.N. report on capital punishment notes, the majority of specialists in these fields are themselves abolitionists:

"... It will be noted that, among the leading authorities in penal science, the supporters of abolition appreciably outnumber those who favour the retention of capital punishment. The specialists of the social sciences, criminologists, sociologists, penologists, psychologists, doctors and writers on social science and criminology are, in their great majority, abolitionists.'

26

This is substantiated by Bedau in his discussion of what Americans think about the death penalty:

"... Psychiatrists, penologists and possibly social scientists and social workers generally, as well as higher government officials, tend to oppose the death penalty in this country at this time.'

127

In his anthology, The Death Penalty in America, Bedau summarizes what in his opinion are the two major abolitionist arguments; one of these arguments is a comprehensive statement of the abolitionist objections to the psychological validity of the death penalty as a special deterrent to murder.28 According to this argument, murders are either premeditated, or they are not. In the case of unpremeditated murders, no punishment will be effective as a deterrent. Mr. Bedau's comment here reflects the conviction held by many that this category comprises a considerable percentage of those who commit violent crimes:

"When one considers that most of the undeterrables are likely to be suffering from one or another form of mental illness, and that considerable evidence exists to show that murderers and condemned men generally include a large proportion who are sick, it seems pointless to threaten such offenders with death." 29

The argument continues that premeditated murders are committed by people who either do or do not expect to be caught. About the latter category, those who expect to be apprehended, Bedau comments:

"In the latter case, there is nothing whatever gained (so far as controlling his behavior is concerned) by threatening to kill him as his punishment; for he is likely to try to kill himself (just as he is likely to surrender to the police right after his crime). Such cases are by no means rare.'

Abolitionists argue that, for this type of murderer the death penalty is, in fact, more apt to be an inducement than a deterrent. Sellin has noted the existence of ". . . good evidence that the availability of instruments used to inflict the punishment of death has induced people of unbalanced mind to seek that punishment as a devious means of suicide." 31

23 American Bar Association, Section of Criminal Law, op. cit., p. 23.

24 Sellin, The Death Penalty, p. 55.

25 Donald R. Campion, "Does the Death Penalty Protect State Police?" (1955), in Bedau (ed.), op. cit., pp. 314–315.

26 United Nations, op. cit., p. 62.

27 Bedau (ed.), op. cit., p. 236.

28 Ibid., pp. 270-272. See p. 16 below for a discussion of the second argument.

29 Bedau (ed.), op. cit., p. 271.

30 Ibid.

31 Sellin, "Capital Punishment," p. 4.