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in the way other additional States will follow, follow in the steps of the Federal Government's side.

Senator HART. Warden, we are grateful that you would give us the benefit of your experience in the management of prison and the study of criminal offenders and the effect that capital punishment may have on them. I hope lots of people read it.

Mr. DUFFY. Thank you.

Senator HART. We turn now to another American who has over long years been responsible for the management of penal institutions, the former Director of the U.S. Bureau of Prisons, an old friend of many members of the Judiciary. That does not apply to all members of the committee, but we have had the benefit of his testimony many times, James V. Bennett.


Mr. BENNETT. Good morning, Mr. Chairman, Mr. Paisley, members of the staff of the committee.

Thank you, sir, for your introduction.

It is true that I am the former Director of the Federal Bureau of Prisons, having been Director for some 2712 years.

I am a member of the council and former chairman of the Section on Criminal Law of the American Bar Association and presently the president of the Joint Commission on Correctional Manpower and Training.

Incidentally, Mr. Chairman, I served on the United Nations committee that drafted a report on the desirability of retention of the death penalty. We examined into that, and I take it that your staff has a copy of that report.

Senator HART. We will make sure that it is in the files of the committee. Did I understand you to say that that U.N study recommended retention?

Mr. BENNETT. No, sir. It recommended abolition of the death penalty, and, incidentally, all of the members of the General Assembly who were delegates to the General Assembly at the time that report came up voted in favor of the report; that is to say, voted in favor of recommending that members of the United Nations abolish the capital penalty.

In other words, Senator, we have a somewhat ambivalence on this matter.

Senator HART. We sure do.

Mr. BENNETT. We recommend it to others and retain it ourselves. Senator HART. It would be nice to think that that was the only instance where we were inconsistent.

Mr. BENNETT. Mr. Chairman, I appear before you as the official of the Government who was directly responsible for carrying out the orders of the Federal courts when the death penalty was imposed.

I regret to say that during the 2712 years I was Director of the Federal Prison Bureau, I made the arrangements for the execution of 26 men and two women. Those executed for military offenses were the responsibility of the Army or Air Force. From 1930 to 1961 there have been 160 executions by the military. Of this number 148 occurred

during the war period between 1942 and 1950. Twelve members of the Army have been executed since 1954.

As you know, in your very able statement when you introduced this bill, Senator, you pointed out that there have been no executions of Navy officers, sailors or marines since 1843. To all practical intents and purposes the death penalty has been abolished for 125 years so far as it affects convictions by Navy courts-martial for such offenses as murder, rape, desertion in the face of the enemy, and so on, by Navy personnel. Incidentally I have never heard it argued that the abolition of the death penalty by the Navy has resulted in an increase in violent crimes by members of the Navy or the Marine Corps, as compared with Army people.

As one who has had firsthand acquaintanceship, so to speak, with the death penalty, let me say its grizzly nature was brought home to me some years ago when I was leafing through a pile of papers on my desk. Amid the myriad housekeeping documents that required my personal approval was a bill for $5 for the acid and cyanide used in the execution of a man named Arthur Ross Brown. He was a kidnaper, a rapist, and murderer. He had been put on trial on a Monday morning and on Wednesday of the same week the jury found him guilty, adding a recommendation that the death penalty be imposed. The judge imposed it and 1 month and a day later, we carried out the sentence in the gas chamber. Not even Brown's mother, loyal and loving to the last, would tease out a series of appeals that she knew would be useless.

The whole sad business was handled quietly and expeditiously. Only one man protested, not against the execution, but against my decision not to allow him to photograph the proceedings in the gas chamber. The following morning, only a few paragraphs in the newspapers reported the event. If the point of the death penalty was to deter, I asked myself, who did the execution of Brown deter? Who ever knew about it, and who cared?

Let me interpolate there, Senator, that there have been many suggestions, and this is one of a similar nature, that whenever capital punishment is carried out, that it be put on TV. That is a suggestion that has been made to me, and is frequently made, both by those who advocate its abolition and by those who want its retention. Thank heavens nobody has so far ever ventured that far.

Senator HART. Mr. Bennett, why do you, as I take it you do, resist that suggestion?

Mr. BENNETT. Because we are a civilized country, Senator. This is a country that does not want to see such barbaric incidents any more than it wants to witness on TV certain types of surgical and other kinds of gruesome events that occur. We are a country that revolts against that sort of thing. It should no more be on TV or in the movies than many other things that offend and affront our moral sense of what is right, Christian, and civilized.

Senator HART. If you were an abolitionist, why wouldn't you continue the argument, though, and say because we are a people that are sensitive, which we like to think we are, if we could just get it on television, then our outrage would be registered in State legislatures and in the Congress?

Mr. BENNETT. I don't buy that argument, Senator. I don't think that it would be so any more than having hangings that Governor

DiSalle described in his book, when it was a great, gay day and everybody went out. That wasn't what prevented and stopped the hangman in England. There were other forces and other personalities and other reasons.

Senator, even more traumatic was my first experience with the execution of a citizen of your State-one Anthony Chebatoris. He had been convicted in Federal court of murder during an attempted bank robbery in Michigan. The death penalty had long been outlawed in that State, but it was Chebatoris' misfortune that the circumstances of the robbery brought it under Federal jurisdiction. Throughout his lengthy trial, he insisted that he had not shot and killed a bystander, as charged, but that a police officer must have fired a stray round. Chebatoris was found guilty and condemned to be hanged.

Warden John Ryan of the Milan institution was given the job of carrying out the sentence. Reluctantly, he erected a gallows in the interior of the prison and surrounded it with a canvas screen. Then he located a man said to be an expert hangman.

At 2 a.m., on the morning of the execution, Ryan called me at home. "Is it all over?" I asked. Ryan replied: "I wish to God it was. The hangman arrived about an hour ago. He's gloriously drunk and he's got three friends with him, just as potted as he. We've given him enough coffee to sober him up a bit, but he says he isn't going to do the job unless we let his friends watch. He wants them to see what a 'pro' he is." I reminded Ryan that nobody, under Federal regulations, could attend the execution except official witnesses, but Ryan replied: "I've been talking to him and he keeps threatening to pack up his stuff and get out if we don't let his friends in. They're all drunk. They can hardÏy walk." When I told Ryan that he would have to carry out the execution himself in accordance with regulations if a hangman could not be found, he blew up at me: "No, sir. I'm against the whole business anyway. We haven't had a hanging here in the State in a hundred years and the whole institution's on edge. You and the Attorney General can have this job right now."

We talked on some more, and eventually Ryan said that he would go back to try to talk the hangman into executing Chebatoris. He solved the problem when he realized that the hangman was too drunk, and the execution chamber too dark, for the hangman to be able to see whether his friends were in the room or not. Ryan told the hangman that he would let the friends watch from the back of the room, whereupon the man agreed to execute Chebatoris. Afterward, another uproar began. When the hangman asked his friends what they thought of the job, they complained that the warden had kept them outside. The hangman promptly accused Ryan of trickery and deception, adding that he was not fit to run a federal institution. He threatened a congressional investigation, as I remember it. At this, Ryan's patience finally broke, and he threw the lot of drunks out of the prison gate.

May I interpolate here, Senator, that it is a long custom for the issuance of a ration of liquor to the witnesses, the official witnesses of executions in some countries. One of those countries is Australia, and there is present in the room this morning a deputy assistant attorney general from Canberra, who is over here studying the death penalty for recommendations to his country. He tells me that the theory at

least that the witnesses are entitled to a strong drink of whisky is still in vogue.

Senator HART. Let me interrupt, Mr. Bennett, just in case our visitor leaves before you have concluded, I would have an opportunity to express our pleasure that he took the time to join us. I wish that our witness list was not already so long that we could get an Australian impression of this subject matter.

Does Australia have capital punishment still?

Mr. BENNETT. Yes, sir.

Senator HART. The practice you describe is a current practice. It is not history?

Mr. BENNETT. Yes, I think so. Senator, we didn't brag about this episode, as you can see. We didn't brag about the fact that we had succeeded in carrying this out, and gotten rid of these drunken people without any outward incidents, but the whole procedure was inherently disgusting, and indicates that the death penalty has led to many excesses, and it is small wonder indeed that such persons as Warden Duffy here, Warden John Ryan from out there, Lewis Lawes and James Johnston of Alcatraz have been in the forefront of those who wanted to abolish capital punishment.

May I say there, Senator, as to the effect that the abolition of capital punishment will have on crime, let me point out that bank robberies are almost always committed when the person is armed with a gun, and the potentiality of killing someone is very great. Yet bank robberies are on the increase, measurably on the increase, and there are a number of cases, of course, where people have been shot, in the course of a bank robbery, and yet they have not been executed, frequently because of some problem relating to the facts, the evidence, the commission of the crime, that makes it undesirable for one person or an other to go forward with the carrying out of the death penalty.

One Charles Nussbaum is a good example of that. He was a gunman, a person with no regard for human life, who robbed a bank in Brooklyn, and in the process killed a policeman. But the Government accepted a plea of guilty, and he was given a life sentence.

Perhaps even a better case is that of Joe Valachi, who appeared before this committee, a nationwide amusement not to say amazement. He committed a murder, a coldblooded murder if ever there was one, and yet he was permitted to plead, and accept in return a life sentence. I will go into this a little bit more later on in my statement. But what I am interjecting here is to tell you that I believe that the retention of the death penalty instead of deterring crime is more apt to increase it or allow it to continue.

Senator HART. You say you will develop that statement further? Mr. BENNETT. Yes, I will develop that a little later on. I also would like to call your attention to another case, Senator, in which you are much interested, and were very helpful, when it involved the possibilities that an innocent man might be convicted and sentenced to execution. I refer to the case, as you know, Senator, of Charles Bernstein. You are familiar with this case. You sponsored and introduced into the Senate and secured passage of the bill to compensate him for the nearly 8 years he spent in prison for an offense he did not commit, and for which he was once within 15 minutes of execution. I personally, among others, investigated the case, various officials of the Department of

Justice indicated they investigated the case, and they came to the conclusion that he could not possibly have been present as the principal prosecuting witness testified. For 26 years Charles Bernstein had lived a law-abiding life, had been a good citizen, and has been a credit to all of those, including yourself who were interested in him. He is present in the room this morning, Senator, as a man who was innocent and yet was within 15 minutes of being executed, a traumatic experience indeed.

Senator HART. Mr. Bennett, you are quite right. It is one case I think I do know, and I had considered as you suggested that we hear from Mr. Bernstein. In my book that is just adding to the cruelty of the case, because no one could have experienced what he did without having emotional reactions whenever it goes on public view once again. But anybody who wants to read, as you suggest here, the record in support of the bill, will be in a sense living with a man whom you say was just blink of an eye away from being executed, and society was absolutely 100 percent wrong, and that now is recognized. You helped convince Congress in this case.

Mr. BENNETT. Mr. Chairman, might I interject also in my statement there that Charles Bernstein carried his case through all of the various appeals procedures and to the Supreme Court of the United States and the fact that appeals lie is no protection, no assurance that an innocent man may not possibly be executed, because of course the appeals court considers only the law and not the facts.

Mr. Chairman, while I was serving as an Assistant Director of the Federal Prison Bureau in 1935 I made a list of the 199 executions that had taken place in the Federal and State jurisdictions during that year. I noted that executions were being carried out at a rate of 18 for every 1,000 homicides. In 1963, the year in which I retired, I compiled a similar list. There were 21 executions at a rate of three per 1,000 homicides. Since then, the actual use of the death penalty has declined further. In 1965, 67 men were condemned to death by the State courts and 62 were reprieved. In 1966, only one man was executed in the whole country. Today, more than 300 condemned men wait in their death cells while their attorneys maneuver through the appellate processes and it is safe to say that most of them will be reprieved.

Senator, it might be helpful to the committee if later on in the record I introduce some material from the State of Florida, where an investigation was made of all of those people that were on or still are on death row.

The purpose of this thing is to show the extent to which they were represented by paid counsel, by counsel appointed by the court, color, race, mental capacity, education and so on, a very interesting study, and it shows from actual sampling just what has been said here in argumentative form.

Senator HART. We will add to the record at the conclusion of your statement a paper. I hope you will be able to furnish it to us.

Mr. BENNETT. I will furnish that and other data for the record if you care to have me do so.

Senator HART. We do.

Mr. BENNETT. I doubt that I need to tell you, it is already in the record, of the trend toward abolition of the death penalty, the fact

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