valid research to prove that capital punishment actually deters crime. Contemporary studies show no pronounced difference in the rate of murders and other crimes of violence between states in the United States which impose capital punishment and those bordering on them which do not. In fact, many states and countries without capital punishment have an incidence of homicide (murder and nonnegligent manslaughter) below that of contiguous and comparable jurisdictions where the death penalty is in effect for such offenses.*

During the 5-year period from 1960 to 1965, the Federal Bureau of Investigation estimated that there were 43,890 murders and nonnegligent manslaughters. Only 145 persons were executed for murder during the same period. It is estimated that one-fourth of the total homicides were defined as capital crimes. Accordingly, approximately 8 persons per 1,000 capital crimes paid the extreme penalty. When such a small proportion-8 persons out of every 1,000 murders-surrender their lives, it is difficult to understand how the death penalty can be regarded as a deterrent to homicide. As one of the world's foremost criminologists (Professor Thorsten Sellin of the University of Pennsylvania) has said: "The death penalty has failed as a deterrent."

The deterrent theory is also irrelevant because most murders are committed by persons who are in an irrational state of mind, often with only a moment's forethought. Such persons are frequently so perplexed and bewildered at the time of a quarrel that they are not capable of being objective in their judgments and actions.

A high proportion of homicides are committed by family members, friends, or lovers of the victims. Only a relatively small number commit their crimes deliberately. These do not plan on being apprehended. Thus, most persons who commit a homicide seldom deliberate beforehand or contemplate the consequences, and many do not intend the death of the victim.

Crimes of violence frequently are committed by persons suffering from serious mental illness. To a large extent their crimes also are impulsive; often they are irresistibly driven to their crimes. Their mental disorder is not always detected until violent acts occur. To expect the death penalty to act as an effective deterrent to these mentally ill persons is to expect abnormal people to act in terms of an objective and rational calculation of possible consequences. Finally, no one has yet been able to demonstrate that abolition of capital punishment leads to an increase in capital crimes. Here again the necessary evidence is hard to get at, e.g., to what degree does the existence of the death sentence act as a deterrent? However, the before and after rate of homicides in jurisdictions where abolition has just occurred reflect no increase. In support of this statement we quote from page 7 of the 1964 Uniform Crime Reports, published by the Federal Bureau of Investigation.

"There were over 1,350 felony murders committed in 1965 during the course of crimes such as robberies, gangland slayings, sex crimes, murders of police officers, etc. It is the law enforcement position that this is generally the type of killing for which the death penalty should be retained as deterrent rather than the impulsive type of murders described earlier. Statistical measurement of the deterrent effect of the death penalty or the lack of it is not conclusive from data currently available but the following is set forth for information. The felony murder rate in the eight noncapital punishment states for the three-year period 1962-1964 was 4 per million inhabitants. In the remaining states where the death penalty was legally possible, the felony murder rate was 6 per million population. On the other hand, the proportion of felony murder to the total willful killings in the noncapital punishment states during the same period was 17 per cent, while in capital punishment states the percentage of felony murder was 13 per cent. As indicated earlier, the basic conditions which cause murder, including felony murder, vary widely from state to state. The extent to which these conditions exist will essentially determine the amount of murder; other factors are contributory." "

Much of the pressure on behalf of retaining capital punishment comes from the law enforcement community. It is held that the death penalty is significant as a deterrent to the killing of policemen. Such an allegation cannot, however, be demonstrated empirically. On the contrary, a study conducted in 1955 indicates that, during the period between 1919 and 1954; six states having no death penalty

4 Ibid., pp. 15, 117-18; see also United Nations Publication ST/SOA/SD/9, 62. IV. 2, "Capital Punishment," 1962.

5 See also statistics of the Canadian Correction Association as reproduced in Social Statements of the Lutheran Church in America-Canada Section, 1965, pp. 7-8.

and the eleven states bordering on them showed the same rate of policemen killed. More recent statistics supplied by the Federal Bureau of Investigation for 1961-63 show no significant difference between the two groups of states included in the earlier study."

4. Most of those convicted of homicide eventually return to society as lawabiding citizens. The retentionists have expressed concern about the recurrence of another homicide, either in prison or following release to the free community. This is not borne out by the facts. Career prison administrators assert that lifetermers convicted of murder rarely commit another homicide and declare that society is amply protected by a sentence to life imprisonment." Relapse into crime is rare among persons convicted of first-degree murder who later are paroled. In most jurisdictions persons serving life terms are eligible for release-but not necessarily released-to society after serving 15 years of their sentence. A relatively high proportion return to their communities as law-abiding, responsible citizens. Professor Thorsten Sellin states, "Prisoners serving life sentences for murder do not constitute a special threat to safety of other prisoners, or to the prison staff. They are, as a rule, among the best behaved prisoners and if paroled, they are the least likely to violate parole by commission of a new crime. In the few cases where such a violation occurs, the crime is usually not a very serious one. A repeated homicide is almost unheard of."

A recent 10-year-study in California showed that of 342 persons committed for first-degree murder who were paroled after serving a prison term averaging 12 years, 90 per cent completed their parole without violation. Of those who violated the conditions of parole, only 2.9 per cent committed violations of such seriousness that they had to be returned to prison.

5. The death penalty results in delayed justice and costly trials. Capital punishment is an obstruction to the swift and certain administration of criminal justice. Legal trials in capital crimes are involved and costly. Trial and appellate courts invariably are confronted with numerous post-trial applications, petitions, and appeals which, in the aggregate, are time consuming.

There are also inordinate delays from the time of conviction until execution. In California during the last dozen years, for example, no one has been executed less than 8 months after being received in death row. One man spent more than 11 years in death row and was finally put to death. In California the median period for those awaiting execution is 15 months. Two men in the Louisiana death house have been awaiting execution for nearly 13 years. Society is thus carrying out a deliberate infliction of the death penalty months or years after the occurence of the offence.

6. An execution makes final and irrevocable any miscarriage of justice. The death penalty poses the frightening possibility of putting to death an innocent person. There are a number of instances where innocent men have been executed and also cases where the stay of execution came too late the execution was under way. Convictions may sometimes be obtained by forced confessions or other violations of due process of law. Execution is the only penalty in which a legal error revealed later cannot be corrected. From a humane standpoint this by itself is sufficient reason to abolish the death penalty.

III

For the reasons summarized above it is concluded that capital punishment, far from assisting civil government to perform its divinely-ordained role, actually conflicts with the state's task of maintaining order and justice for the sake of its citizens.

Efforts to secure the abolition of capital punishment should be made within the context of a larger concern about those social ills which breed criminal behavior. Such a concern is stated most clearly in the concluding paragraph of the background paper which accompanied the recent statement by the Canada Section of the Lutheran Church in America. It reads:

"The first objective of the State and its citizens must be to strive for adequate treatment facilities in correctional institutions, for increased parole and probation services, for intensified study of the causes of anti-social behavior and crime, and for programs and social services which work towards the elimination of such causes. Coupled with this must be the strengthened of family life and the building up of strong spiritual and moral values in

As reported in an address by Thorsten Sellin, Professor of Sociology, University of Pennsylvania to the Canadian Society for the abolition of the Death Penalty, February 7, 1965. LCA-Canada Section, Op. cit., p. 9.

the individuals who make up our society. The Church must constantly reappraise its ministry to people in conflict with society and its role in strengthening family life and upholding community values. Only after intensive efforts by both State and Church towards the improvement of social conditions and of the correctional system will society be in a position to assess an appropriate response to those who commit capital crimes."

Selected Readings

DiSalle, Michael V. The Power of Life or Death. New York: Random House, 1965. Fravreau, Hon. Guy. Capital Punishment-Material Relating to Its Purpose and Value. Ottawa: The Queen's Printer, 1965.

Joyce, J. A. Capital Punishment: A World View. New York: Nelson, 1961. Lutheran Church in America-Canada Section. "Capital Punishment," Social Statements of the Lutheran Church in America-Canada Section, 1965. McCafferty, J. A. "Major Trends in the Use of Capital Punishment," Federal Probation, September, 1961.

O'Halloran, Arthur. "Capital Punishment," Federal Probation, June 1965. Sellin, Thorsten. "Capital Punishment," Federal Probation, September, 1961. United Church of Canada, Committee on Alternatives to Capital Punishment. Alternatives to Capital Punishment. Edmundton, 1960.

United Lutheran Church in America. "Capital Punishment," Minutes of the Twenty-Second Biennial Convention, 1960, pp. 798-801.

United Nations Economic and Social Council. "Capital Punishment," United Nations Publication ST/SOA/SD/9, 62. IV. 2, 1962.

SOCIAL STATEMENTS, OF THE LUTHERAN CHURCH IN AMERICA

CAPITAL PUNISHMENT

(Adopted by the Third Biennial Convention, Kansas City, Mo., June 21-29, 1966) Within recent years, there has been throughout North America a marked increase in the intensity of debate on the question of abolishing the death penalty. This situation has been accompanied by the actual abolition of capital punishment in ten states and two dependencies of the United States, qualified abolition in three states, and in six states a cessation in the use of the death penalty since 1955. Although the issue of abolition has been widely debated in Canada in recent years, a free vote in Parliament on April 5, 1966, failed to end the legality of the death sentence. However, during the last two years or more, death sentences in Canada have been consistently commuted.

These developments have been accompanied by increased attention to the social and psychological causes of crime, the search for improved methods of crime prevention and law enforcement, efforts at revising the penal code and judicial process, and pressure for more adequate methods in the rehabilitation of convicted criminals. There has been a concurrent concern for persons who, because of ethnic or economic status, are seriously hampered in defending themselves in criminal proceedings. It has been increasingly recognized that the socially disadvantaged are forced to bear a double burden: intolerable conditions of life which render them especially vulnerable to forces that incite to crime, and the denial of equal justice through adequate defense.

In seeking to make a responsible judgment on the question of capital punishment, the following considerations must be taken into account:

1. The Right of the State to Take Life

The biblical and confessional witness asserts that the state is responsible under God for the protection of its citizens and the maintenance of justice and public order. For the exercise of its mandate, the state has been entrusted by God with the power to take human life when the failure to do so constitutes a clear danger of the civil community. The possession of this power is not, however, to be interpreted as a command from God that death shall necessarily be employed in punishment for crime. On the other hand, a decision on the part of civil government to abolish the death penalty is not to be construed as a repudiation of the inherent power of the state to take life in the exercise of its divine mandate. 2. Human Rights and Equality Before the Law

The state is commanded by God to wield its power for the sake of freedom, order and justice. The employment of the death penalty at present is a clear • LCA-Canada Section, Op. city., p. 11.

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misuse of this mandate because (a) it falls disproportionately upon those least able to defend themselves, (b) it makes irrevocable any miscarriage of justice, and (c) it ends the possibility of restoring the convicted person to effective and productive citizenship.

3. The Invalidity of the Deterrence Theory

Insights from both criminal psychology and the social causes of crime indicate the impossibility of demonstrating a deterrent value in capital punishment. Contemporary studies show no pronounced difference in the rate of murders and other crime of violence between States in the United States which impose capital punishment and those bordering on them which do not.

In the light of the above considerations, the Lutheran Church in America: urges the abolition of capital punishment;

urges the members of its congregations in those places where capital punishment is still a legal penalty to encourage their legislatures to abolish it; urges citizens everywhere to work with persistence for the improvement of the total system of criminal justice, concerning themselves with adequate appropriations, the improved administration of courts and sentencing practices, adequate probation and parole resources, better penal and correctional institutions, and intensified study of delinquency and crime;

urges the continued development of a massive assault on those social conditions which breed hostility toward society and disrespect for the law.

EXECUTIONS UNDER STATE AUTHORITY-JANUARY 20, 1864 тo AUGUST 10, 1966 (Compiled by Negley K. Teeters, Visiting Professor of Sociology, Hartwick College, Oneonta, N.Y. and Charles J. Zibulka, B.A., University of Washington) This is a compilation of the names, counties, and dates of execution of every individual executed at a State penal institution from the first executions in the Vermont State Prison in 1864. Executions in the District of Columbia have been included, together with the electrocutions at the Cook County Jail, Chicago, Illinois, and the country jail hangings in Kentucky for rape. In the latter two instances, county authorities exercised concurrent jurisdiction with State authorities.

This compilation is presented and distributed in the hopes that it will lead to further studies of capital punishment on the State level. With executions from every State having capital punishment listed in this compilation, it will be possible to use newspapers and the published opinions of courts of appellate jurisdiction as sources of information upon these individuals, especially regarding their crimes.

In the column headed CRIME, the crime is presumed to be murder, unless another crime is specifically named. (14 States have no degree of murder). In the column header APPEAL, the symbol * denotes an appeal to the highest State appellate Court; the symbol ** denotes an appeal to the United States Supreme Court (this included petitions for writs of Certiorari, most of which are denied); the symbol *** denotes an application for the writ of Habeas Corpus to the United States District Court and/or appeal to the United States Circuit Court of Appeals. The symbol n.t. means a new trial has been awarded by order of one of the above courts.

Information on appeals has been derived from the Indices to the Decennial Digests published by West Publishing Company. This data is not completely accurate, as the Indices alone were hurriedly consulted for legal citations. Many defendants with common surnames have had their appeals confused with other defendants of the same name not executed. OR some appeals have been docketed under the name of a crime partner who was not executed. A listing of appeals for executions since 1956 is very incomplete, as a 10-year table of csaes has not been compiled for that period. Many appeals so reported are either summarily affirmed or argued upon legal points only, and no information as to the crime is included in the opinion.

Some institutions have furnished information as to race and age, which are included. Sometimes age is that upon reception, which can be some time earlier than execution.

Our heartfelt thanks to the Wardens and Departments of Correction of the various States who have taken the trouble to furnish us with the information which is, in part, distributed in this compilation.