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that overseas and abroad there is a great deal of debate about it, and it is gradually being deescalated. I think there is no question but what the death penalty is revolting, susceptible to miscarriages of justice and ineffective in the sense that it is not a deterrent to murder. And of course, as Warden Duffy has pointed out very eloquently, its macabre methodology is revolting.
Its presence on the Federal statute books has led to all sorts of anomalies and distortions of the administration of criminal justice. How grotesque it is to be executing people for crimes carrying a penalty which is offensive to the people of the State in which the crime occurred as in the Chebatoris case. And there have been others. How can you explain why the death penalty is a dead letter in one branch of the Defense Department and is still embraced as a deterrent to crime by another. But it is even more of an affront to our ideals of equal justice under law when you note how it warps our system of criminal justice.
At bottom, the retention of the death penalty has led to all sorts of controversial not to say inconsistent and erratic decisions of our courts on such things as mental responsibility for crime, use of confessions admissibility of evidence, arrest and arraignment procedures and so on. We might not have the Miranda, Escobedo, Mallory, Durham, and other decisions were it not for the fact that the death penalty was involved. As Attorney General Robert H. Jackson put it:
When the penalty is death appellate judges are tempted to strain the evidence, and in close cases the law, in order to give doubtfully condemned men another chance.
If I do not trespass unduly upon your time and patience, I would like to recite briefly the facts in one case in support of the inconsistencies created in our Federal law by the presence on the statute books of the death penalty. It is the case of Victor H. Ferguer who was hung in Iowa in 1963 pursuant to a Federal court conviction of murder while engaged in transporting in interstate commerce a kidnapped person. He wrote to me toward the end of the 2 years his case was being processed in the Federal courts that he wanted to die and protested efforts on the part of his court-appointed attorneys to have his sentence set aside.
My investigation of this strange request showed that within a month from the time he was discharged from a State penitentiary he had bought over the counter of a Milwaukee gunstore a .38 caliber revolver with no questions asked.
Thus armed, Ferguer went to a telephone booth, opened the yellow pages of the telephone directory, and at random put his finger on a name. He called this doctor who was a greatly admired physician, and in a panicky voice asked him to come to a certain place to attend his extremely sick wife. When the doctor arrived in his car he kidnapped him at the point of his gun, drove him across the State line into Iowa, shot him in cold blood and left his body in a cornfield. He drove on to Atlanta, Ga., where he was apprehended while trying to sell the doctor's car.
His court-appointed attorney rested his defense entirely on a plea of insanity. He was examined by several psychiatrists including two of our Federal prison doctors who found he knew the difference be
tween right and wrong and being tried in Iowa, the McNaughton rule would apply and he was responsible for his acts.
The doctors recited without making a judgment as to the degree of his mental illness the fact he had been diagnosed as a borderline schizophrenic, and had a long record of crime and juvenile delinquency dating back to his 11th birthday as well as rejection by all of his family. There were other facts, many of them, Senator, that I haven't put down here, to indicate that had the Durham rule which applies as you know in the District of Columbia, or the American Law Institute rule recently applied in New York, among others, defining mental responsibility for crime, had that been in vogue in Iowa, he probably would have been found not guilty by reason of insanity. Thus the inconsistency in our system to which I referred, and thus the fact that retention of the death penalty complicates our court procedures, our methods of gathering evidence, the use of confessions and so on to the point where probably it is responsible for some of the increase in crime that has occurred. Abolition I think might reduce crime by lessening the chance that guilty men will be freed, because of the fact that some of these decisions I feel sure at least would have not been made at this particular time. Violence indeed begets violence.
Senator, in summary I should think we could have a system of penalties that in the Federal system at least would promote consistent, equal, and humane administration of criminal justice. The best way to achieve that goal so far as crimes now taking the death penalty are concerned is to abolish a penalty that cannot be justified as a deterrent to crime, is unworthy morally of our civilization and destructive of our ideals of equal justice. I urge approval of this bill. Thank you, sir.
Senator HART. Mr. Bennett, there are a great many Members of this Congress and others in earlier Congresses who know you and who have enormous respect for you. I have a feeling that your strong recommendations will be persuasive with some. I have a disagreeable item of information today. The word has reached us that there has been an objection made on the floor to any committee meeting while the Senate is in session. This is not some antiabolitionist Senator who made this point. It is that the point was made with respect to sitting of all committees for the balance of the day, and reflects a desire, I am sure, that the Members be present on the floor for the debate which began with that last snarl of the buzzer system, on a set of ethics for the Senate, that being the business of the day. We can't decide this morning what to do about executing others, but maybe we can do something about rules for ourselves.
I know how great the inconvenience to some of our witnesses this will be. I hope that we can adjust for tomorrow for the witnesses whom we have not heard. I hope those who are from out of town will be able to stay. Of course the record will receive their statement, but it is so much more helpful, so very helpful if they are able to respond to questions.
Mr. Paisley, have you some questions?
Mr. PAISLEY. Senator, I will make it short.
Mr. Bennett, how would you answer the opponents of this bill who say, "Well, we have no assurance that we can keep these vicious
murderers away from the public, no assurance that they will stay in jail. They will soon be out committing the same type of crime?" What is your answer to that?
Mr. BENNETT. I don't think it can be substantiated. I think as a matter of fact men who have been convicted of murder and paroled show a splendid record of readjustment in the community. There are very, very few incidents. I supplied a few. I think there is some statistical data on that, Mr. Paisley, and I think I can supply it to
Mr. PAISLEY. I was just going to ask you. You must have had a lot of lifers come under your jurisdiction. Do you have any statistics? Mr. BENNETT. Oh, yes. You mean as to the percentage of them that have succeeded and failed? Yes.
Mr. PAISLEY. How many were released, how soon were they released, and whether they have been back.
Mr. BENNETT. Yes. Well, I can tell you this overall, Mr. Paisley. In the Federal system only about 33 percent of all of them across the board ever get into difficulty with the law again.
Mr. PAISLEY. Would you favor Congress writing in restrictions in this bill upon the parole boards?
Mr. BENNETT. No, because all that does, Mr. Paisley, is to transfer the responsibility for determining whether or not they should be released from the parole board to the executive branch of the service, and it would get nowhere. It would simply increase the already intolerable burden upon the Chief Executive.
Mr. PAISLEY. From your experience as head of the Federal Prison Bureau, you feel that the parole board usually acted with good commonsense with due regard to the rights of society?
Mr. BENNETT. I do, sir, even in a number of those cases that you prosecuted, Mr. Paisley, and who later on were paroled.
Mr. PAISLEY. I will ask you this, just as sort of the devil's advocate here.
Senator HART. We do have an obligation to play that role in this record.
Mr. PAISLEY. I agree with you, I agree with Warden Duffy and Governor DiSalle personally. I have no vote, but I feel an obligation since Senator McClellan can't be here, as I say, to play the devil's advocate.
How would you protect society from this man who called up the doctor, had him come out, kidnapped him, and murdered him?
Mr. BENNETT. Well, I can say this. That death penalty in that was no deterrent. What I would have tried to do was search out that fellow at an earlier period. I would have kept him in custody, probably in a mental hospital, or had I been the judge at the time he was committed, I would have committed this person for a long period under an indeterminate sentence procedure. If we had the law, if we had the diagnostic facilities which we should have, we could have spotted that fellow and prevented him returning to society until at least he would be improved, and there are many cases on record, as you know, where exactly that has occurred.
Mr. PAISLEY. You wouldn't favor then a provision in this bill that Federal juries would hear all facts about the criminal and fix the number of years the accused would serve?
Mr. BENNETT. Yes. On the contrary, Mr. Paisley, I would favor a system that said that after the individual had been convicted, and the evidence was all in, he would have a separate jury trial as to the punishment to be inflicted, and that if the penalty were retained under any circumstances, both the judge and the jury would have to concur. Mr. PAISLEY. You mean in the death penalty?
Mr. BENNETT. In the death penalty. That is the least that we could do.
Mr. PAISLEY. Would you favor a provision in this bill that the Federal juries which hear capital cases, assuming the death penalty is abolished, could fix the time?
Mr. BENNETT. Oh, fix the length of time?
Mr. PAISLEY. Yes.
Mr. BENNETT. No, sir; I would not. I think that sentencing by juries, whether it be in Missouri, in Texas or any of the other States where it occurs, is dead wrong. The jury doesn't have the diagnostic material, it doesn't have the information about the individual that it needs to have, and more frequently their decisions as to the sentence are wide of the mark where the judge sentences, and of course as you know from your experience, where the judge does sentence, the question of the penalty to be fixed by the jury is of far greater controversy than the issue of guilt or innocence. So it doesn't work. Virginia is a State, incidentally, as you know, that retains sentencing by the jury.
Mr. PAISLEY. You would prefer the bill in its present form rather than to provide that the jury should find only guilt or innocence, and then another jury fix the punishment?
Mr. BENNETT. If the death penalty were approved, yes.
Mr. PAISLEY. You prefer the bill as it is?
Mr. BENNETT. Oh, of course.
Mr. PAISLEY. That is all, Mr. Chairman.
Senator HART. Mr. Bennett, I thank you for your always interesting and helpful testimony.
Mr. BENNETT. I would like to be of help to the committee in any way I can, Senator, and if it occurs that you want any information in detail about the various cases, why, perhaps I can secure it for you.
Senator HART. The figures that I think bear on the questioning that Mr. Paisley just developed will be in order. I would hope to the extent that you have or that the Department has information bearing on experience after release, and particularly experience after release of men who were found guilty of violent crimes would be useful.
I apologize again on the record to those who are going to be inconvenienced, and in anticipation that the Senate will be involved with the same subject matter tomorrow, and that the committees again will not be permitted to sit after the morning hour, I would suggest that we adjourn to resume in this room at 9 tomorrow.
Hearing no objection, we will adjourn until 9 tomorrow.
(Whereupon, at 12:30 p.m., the subcommittee recessed, to reconvene at 9 a.m., Thursday, March 21, 1968.)
ABOLISH THE DEATH PENALTY UNDER ALL LAWS OF THE UNITED STATES, AND FOR OTHER PURPOSES
THURSDAY, MARCH 21, 1968
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES,
COMMITTEE ON THE JUDICIARY,
The subcommittee met, pursuant to recess, at 9:25 a.m., in room 1318, New Senate Office Building, Senator Philip A. Hart presiding. Present: Senator Hart.
Also present: William A. Paisley, chief counsel.
Senator HART. The committee will be in order.
Because of our earlier starting hour, the order in which we will hear witnesses will remain flexible.
The Attorney General of the United States, the Honorable Ramsey Clark, had been scheduled as a witness for today but unfortunately found, as is often the case, matters in the Department which obliged him to ask that the committee schedule him at a later date. This, of course, was done, and I only wish that the circumstances had permitted him to be here today. However, all of us understand the burdens of that office.
Let us start this morning with a young American, Douglas Lyons. Douglas Lyons is the chairman of Citizens Against Legalized Murder, a student volunteer organization. I would hope that Mr. Lyons will describe for us that organization, and, additionally, give us a little background about himself first.
STATEMENT OF DOUGLAS LYONS, CHAIRMAN, CITIZENS AGAINST LEGALIZED MURDER
Mr. LYONS. Thank you, Senator Hart.
I appreciate the opportunity to appear before the subcommittee. The organization is on the campus of the University of California at Berkeley, where I am a junior. It is over 2 years old now. We are over 3,000 members in 48 of the 50 States, and the District of Columbia and Puerto Rico.
The organization's only purpose is to work for the abolition of the death penalty throughout the country. We are concentrating our efforts in California where 74 men are now on death row at San Quentin. This is a world's record.
The experts who preceded me here yesterday
Senator HART. Mr. Lyons, do I understand that the Citizens Against Legalized Murder was organized on the campus at Berkeley but you now have campus chapters elsewhere?