Governor DiSalle said something about the wealthy are never executed. I can give you a lifetime of experience that that is true. I have asked many hundreds and hundreds of people in public addresses that I have made, "Do you know of anyone that was wealthy that was ever sentenced to be executed in the history of the United States?" And after over 35 years of lecturing, I have yet to have one say that they could. And I also preface that by saying, "If you will give the name and the location, I will research it and use it in my lectures from here on." So I call it a privilege of the poor.

Have there been errors? Yes, there have. They are reported and there is always an element of the chance of error. It is true that the automatic appeal used in some States is a means of finding any errors. However, if an innocent person is put to death, as we know and in later years the real murderer comes to light, it is too late to do anything about it. There have been many reversals by the State and Federal courts. Many new trials ordered, lesser degrees administered, and Governors and Presidents have commuted many condemned inmates to a lesser degree than death.

I believe it is somewhat emotional on the part of the people who hold the belief that the death penalty should remain. People who come to our prison are, in most cases, emotionally or mentally disturbed. I have known cases where men have had to be executed when all they were able to answer were the legal answers to questions: "Know the difference between right and wrong, the seriousness and quality of their act, and the penalty they were facing." The old McNaughton rule. They would otherwise be so mentally gone that their case was pitiful. Some would have to be led to the gallows or the gas chamber; others dragged, while screaming from mental fear.

INNOCENT

Although I have never personally known of an innocent person to have been executed, there is documented proof that this has happened a few times. It is, of course, too late to do anything about it after the trap has been sprung.

VICTIMS

Often we are confronted with the statement: "How about the victims?" "How about their loved ones?"

Yes, we do think of the victims and of their loved ones. I have counseled with families of the victims who have come to see me about information they might be able to get from the condemned. I have directed them, consoled them, wept with them, and prayed with them. What has happened to their loved one is wrong. I repeat two wrongs do not make a right.

We also think of the loved one of the condemned. They too suffer greatly. They have not committed any crime, but their grief is heavy.

COSTS

It costs more to execute than to send a person to prison, to serve a full life sentence, and die in prison. This is proven by a survey made by a noted penologist in the State of Illinois. (See Renewal, Feb. 1,

1963) in which he states in part, "I found that 30 years of imprisonment," and 30 years in an insurance company actuarial type of measurement, "cost the State about $45,000, assuming no cost-offsetting activity on the part of the prisoner. By way of comparison, the costs of a capital trial and appeals, special security handling in court and jail, and the long stay on condemned row, the rehearsals, and carrying out of an execution, were in excess of $60,000. Capital punishment is by no means cheaper than life imprisonment, and the jurisdiction that maintains it pays for it dearly in both money and human costs."

California's Administrator of Youth and Adult Corrections Agency in an article in Federal Probation and Parole magazine, June 1964,

wrote:

There is also the argument of cost. Why support some murderer for the rest of his life when we could execute him, and save all that money, the argument goes.

Like so many arguments favoring the death penalty, this does not hold up under factual analysis. The actual cost of execution, the cost of operation, the super maximum security condemned unit, the years spent by some inmates in condemned status, and a pro rata share of top level prison officials, time spent in administering the unit add up to a cost substantially greater than the cost to retain them in prison the rest of their lives.

Edmund G. Brown, former Governor of California, stated:

I am unalterably opposed to capital punishment. It doesn't do a single, solitary bit of good and this has been proved time after time. As a matter of fact, it increases violence because when the State is guilty of a violent act it encourages the individual to be guilty of a violent act. This is seen by violence following a war or following an execution.

I hate to base this opinion on costs, but the cost of killing an individual is far, far greater than if we gave him life in prison. The expenses of a trial, the delay, the additional guards, the lawyers' fees, the court fees are far greater than if life imprisonment were the penalty.

I will do anything I can to see that capital punishment is abolished.

FOR OTHERS

When people who believe in the death penalty for all premeditated murders are faced with the question:

Would you want your son, your daughter, your loved one, executed if he committed murder?

The answer invariably is "No". It therefore is obvious that it is good enough for someone else, but not good enough for me.

I have experienced several cases, and can quote them if need be, where people have said to me that all murderers should be executed. Then a member of their family is faced with execution, and they immediately do an about face and want their loved one saved. That has happened several times.

I believe that capital punishment in Federal and States should be abolished. Our prison systems are set upon the concept that they must protect society and must work toward the rehabilitation of the offender. I believe that most prisoners, except for mental cases, can be changed for the better. A few will have to be kept under close confinement for the rest of their natural lives. When I left the prison system there was a man who had 49 years in prison at that time, several who had well over 30 years, still serving time. Some must die in prison. Some lifers do die in prison. They have committed murder. They are

not sentenced to death. Some who have been sentenced to death would fall into this category, others could be changed.

I personally believe that the death penalty should be abolished. We have ample facilities to keep offenders away from society for the rest of their natural lives if warranted.

When the death penalty is stricken from our statutes, and the gas chambers, the hangman's noose, the electric chair, and the firing squad are done away with as the rack, the screw, burning at the stake, drowning, throwing to the lions, and other barbaric methods were "we will all be better for it."

May I submit, as I have been asked to do, sir, copies of photographs as Exhibit 1, San Quentin, one of the largest prisons in the United States, another is a photograph of the gallows that was used at one time.

This is where men are kept on condemned row in California's prison and similarly in other prisons.

This is a holding cell adjacent to the lethal gas chamber where the men are held the night before, until the next morning's execution. This is the lethal gas chamber with the door open.

This is the gas chamber with the door closed when the man is in there.

And the last one is where the witnesses stand, which are the legal witnesses.

Thank you.

Senator HART. Warden, thank you very much. I felt strongly enough about this to introduce the bill to abolish capital punishment some several years ago, but if I had had any doubts about it, your description of what happens, when you and I as the State puts somebody to death would have resolved any doubts. And yet for this record I have an obligation to ask you some questions to be sure we have a

balance here.

Mr. DUFFY. Yes.

Senator HART. You described the hideous, barbaric scene as somebody springs the trap or drops the pellet or pulls the electric switch. You described the disfigured victim, and the reaction it produced among the witnesses. But I know perfectly well that this subcommittee will be met by the person who says, "Look, there is the same disfigurement, there is the same torture, there is the same horror visited by that man on an innocent member of society. Why are you so overwhelmed by the sight which you describe, when the reason that that sight occurs is because that same individual went out on the street or went into a bedroom and took somebody who under nobody's definition deserved it, and did to him or her the same thing that you are now bewailing as society." What do you say when somebody comes to you with that reaction, and I am sure people must have come to you.

Mr. DUFFY. They have said that to me many, many times, Senator, and my answer is similar to what I have said in my statement, that what these people have done is completely wrong, 100 percent wrong. There is no rhyme or reason for it. There should have been some other way that they should have handled this. Yes, it was wrong. But is it also right for somebody else to commit another murder?

We have ways of handling these people. They do not have to be murdered, a second murder. They do not have to be done any other way

than we are doing today, with hundreds of homicides. Put them away. Keep them away safe from society.

No, I do not condone what these people have done for a moment. It is horrible, terrible, but should we in State and Federal also commit another horrible act?

Senator HART. I don't know how it will impress somebody who reads the record, just the black and white. I don't know to what extent it was your presence and your voice in reading the statement to us that affected everyone in this room as it did me, as you described a scene that few of us have seen, and after listening to you none of us will volunteer to see. But you know, the funny thing is that if we had a public exhibition of what you describe, if as in days of old the village was brought to the scene and everybody saw what happened to the man who today is executed at San Quentin behind the walls, in the view of very few, one of two things would result I suppose. Someone would say, "That is the way to make capital punishment serve as a deterrent. If the village saw what you described, then nobody in that village would commit an act of violence."

My reaction is that if everybody saw what you have described, we would indeed abolish capital punishment. The village would just cry "Stop."

Mr. DUFFY. I believe you are right, Senator, because in my book, "88 Men and 2 Women," which is on the death penalty, and believe me this is not a plug for the book because it is out of print, you cannot buy it, I say in there that if we held legal executions in Times Square, this is before New York abolished, or in front of the tablernacle in Utah, or on the bandstand in Golden Gate Park in San Francisco, using cross country as an example, that I believe we would soon convince the public in their minds that we should abolish the death penalty.

Senator HART. Mr. Paisley.

Mr. PAISLEY. Warden, you probably have often heard the argument that there can be no assurance that the killer will stay in for a life sentence. What do you say to that argument?

Mr. DUFFY. You are correct. There is no assurance that anyone will stay in prison for a life sentence unless the law says that they must stay the rest of their natural life, and that is more of an assurance than a regular life sentence.

A life sentence, as far as I have experienced it, for those who have been released, runs between 12 and 13 years, with those people being the No. 1 best parolees, above all other types of crimes in the penal code. Very rarely has it been known that a released lifer has committed another murder.

I have often had that said to me on the speaker's stand before groups. "Why do you let all these murderers out to kill again?" And I asked one simple question; "Name one." And the person who asks that question cannot name one, because they are just talking.

Well, there have been a very, very minimum number, in the 69 years I have been on this earth, I can only recall, as far as I can without research, about four or five in California that have committed another murder after they have gone out. One was a woman, one of the two that I mentioned, one was a man who went out who had been sentenced to second degree murder, 5 years to life with 20 months minimum term,

went out and murdered again. It is so rare that it is hardly an argu

ment.

Mr. PAISELY. Of course this bill if enacted will apply only to Federal violators, Federal prisoners. Do you feel that Congress should write any restrictions into it, restrictions against the parole board paroling murderers, those who have committed capital crimes?

Mr. Duffy. You are asking me personally. I say "No," I do not believe you should write in restrictions, for this reason.

Usually, if not always, parole board members are good, experienced, qualified people. As far as I have known them, all of them have been. As a member myself for 10 years, and knowing the way parole boards feel and act, I do not know of any parole board member who would ever let anyone out feeling that they might kill again. No, they just don't act that way. So they have the power to keep those kinds of people in for the rest of their natural lives, and they do that, and it happens.

Mr. PAISLEY. Do you know whether or not any of the States which have abolished capital punishment in their legislation have done that? I don't know. I ask you, have restricted the parole boards?

Mr. DUFFY. Well, there are some cases where they have life without possibility of parole, or where a Governor has commuted a person to life without possibility of parole, but then as far as I recall, the Governor still has executive powers of changing that, if he so wishes, whether it be the same Governor or one to follow.

Mr. PAISLEY. I believe in some States the jury fixes the penalty in these capital cases. Do you feel that this bill should be amended in that way?

Mr. DUFFY. I don't like the jury fixing sentences, because at the time of conviction and sentencing, and the time of possible release, the person or persons are changed, sometimes for the worse, and you have to let them out because their time has run. Sometimes the sentences are too long, and you keep them in too long, and they start going downhill. So a true indeterminate sentence is the way I in my experiences have dealt in my thinking. Keep them in until they make the changes that are necessary for their release, and if they don't make the changes, they die in prison.

Mr. PAISLEY. You would recommend then that Congress leave the problems of parole to the parole board?

Mr. DUFFY. Yes; and get good qualified persons on your parole board, as has been done, and you will find that they perform well. Mr. PAISLEY. That is all, Mr. Chairman.

Senator HART. I should have asked Governor DiSalle this. He would answer it from another point of view, but I think it is not inappropriate to ask you. Because of our Federal-State system, unlike the many nations which Governor DiSalle cited as having abolished capital punishment, it would be abolished piecemeal in the United States. What effect would a Federal decision to abolish capital punishment for Federal crimes have on the several States who do have capital punishment?

Mr. DUFFY. I think it would encourage the other States to do the same as the Federal Government has done when they abolish the capital punishment. I very definitely believe this would be a big, big factor

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