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there really isn't much necessity of trying to curtail the parole board, because I think that they would treat the matter with a great deal of caution.
Mr. PAISLEY. Thank you very much. It is good to see you again. Mr. WILLIAMS. Thank you. Nice to see you again, sir.
Senator HART. Governor, I can't recall, when I had the privilege of working for you as legal adviser, anyone going out who was under life sentence, short of surely the period you indicated, I am sure not.
The lifer got a first parole board review after 10 or 15 years, I forget which one it was, but invariably he was put down for a second review and the inmates understood that practice. They didn't even anticipate a serious crack at it before that time.
Mr. WILLIAMS. If it would be useful to the committee, I could inquire of the parole system.
Senator HART. Would you, please?
Mr. WILLIAMS. Surely.
Senator HART. We will make it a part of the record at this point. (The information referred to was not supplied.)
Senator HART. Again, Governor, thank you very much for coming. Mr. WILLIAMS. Thank you, sir.
STATEMENT OF PROF. LEON RADZINOWICZ, WOLFSON PROFESSOR OF CRIMINOLOGY AND DIRECTOR, INSTITUTE OF CRIMINOLOGY, UNIVERSITY OF CAMBRIDGE; ADJUNCT PROFESSOR OF CRIMINAL LAW AND CRIMINOLOGY, COLUMBIA UNIVERSITY
Mr. RADZINOWICZ. Senator Hart, I feel a little bit like an old Victorian piece of furniture. I was asked to appear before you largely because I was a member of the Royal Commission on Capital Punishment, but this, Senator Hart, was a very, very long time ago, and we did take a long time on the job. We started in 1949 and we finished
Capital punishment is a grim, complex, and grave matter, and it deserves careful dispassionate analysis.1
We have been greatly helped in our onerous duties by a group of distinguished experts, American experts, Felix Frankfurter, Learned Hand, Charles Breitel, among the judges, Herbert Wechsler, George Deirgan, Thorsten Sellin and Louis Schwartz, among the professors, not to mention many others. I shall always remember the exciting times that I had in your country when I came here to study the working of your capital punishment laws.
1 The Commission produced a most comprehensive report of some 500 pages, including 16 specialized appendixes; and minutes of evidence running to 900 folio pages were subsequently published.
The Commission made many important recommendations and all considerations of the subject in Britain since 1953 have largely been made in the light of its report.
I am honored to have been invited to testify before you, but I am painfully aware that I cannot in any way be as helpful to you as our American friends who worked with us nearly 20 years ago.
You have asked me to come here because England has been a classical country for the study of many great problems, industrial revolution, growth and fall of an empire, parliamentary system, common law. At a different level it would be difficult to find another civilized country in the world that would afford an equally rich opportunity to study the evolution of capital punishment in the conduct of a civilized society.
I don't wish to bore you. I do not propose to give an academic lecture, but I think that it is important to study capital punishment in your country also, in the context of its evolution.
Between 1750 and 1825 the criminal law of England bristled with capital sanctions. One statute alone, Waltham Black Act, contained at least 100 provisions to which the punishment of death was appointed. This was a period of suspended terror, of crude retribution, of confused scales in crime and punishment. Even when a timid change was proposed, like, for instance, abolition of capital punishment for shoplifting, the House of Lords rejected the bill not less than six times between 1810 and 1820.
In the second period, from 1829 to 1839, at last the principle had been acknowledged that no offense against property unattended by violence should carry capital punishment, and indeed that the same principle should apply to certain offenses against a person that were of a minor character. As a result of the second attitude, capital punishment went down the scale and was appointed for not more than a dozen or so crimes.
The third stage is 1861. An ultimate balance, or shall I better say a tributary equation, was established between the crime of murder and the legal executed death. Since that time, treason apart, there have, in fact been no executions for crimes in England other than murder. Although between 1864 and 1949, several attempts have been made to dilute this equation or even to do away with it. None proved to be successful. Thus an equilibrium has been established which has lasted nearly 100 years between the top crime and the top punishment. We are now at the stage of a radical departure. We enter upon the phase leading to the Murder (Abolition of the Death Penalty) Act of November 8, 1965.
In 1949 a Royal Commission was appointed "to consider and report whether liability under the criminal law in Great Britain to suffer capital punishment for murder should be limited or modified . . .”. They were specifically precluded from considering whether the abolition of capital punishment would be desirable. Among the chief recommendations of their report of 1953 were that the doctrine of "conconstructive malice" should be abolished; that the jury should be given discretion to impose a sentence of life imprisonment instead of a death sentence, and that the minimum age limit for the death penalty should be raised to 21. There was no immediate change in the law.
In 1955 the House of Commons passed a motion on a free vote to take note of the Royal Commission's report, but rejected a call for legislation to suspend the death penalty for 5 years. In 1956, after another
similar motion had been carried, the House of Commons passed the death penalty (abolition) bill on a free vote. It was rejected in the House of Lords by a very large majority.
Late in 1956 the Government introduced a homicide bill designed to restrict capital punishment for murder to the categories of murder that were considered to strike especially at the maintenance of law and order, namely:
1. Murder in the course or furtherance of theft.
2. Murder by shooting or causing an explosion.
3. Murder in the course of resisting arrest or escaping from legal custody.
4. Murder of a police officer or a prison officer.
This bill passed into law as the Homicide Act 1957. It retained the death penalty for repeated murders as well as for those in the categories listed above. For any other type of murder the penalty was life imprisonment.
The act also introduced, for England and Wales, the defence of diminished responsibility whereby, under section 2 "where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing." A person charged with murder who puts forward a successful defence on this count is convicted of manslaughter.
In 1964, a further bill to abolish capital punishment was introduced by a private member of Parliament. The Government gave the meas. ure parliamentary time and allowed a free vote. The bill was accepted by both houses and became law as the Murder (Abolition of Death Penalty) Act on November 8, 1965.
The act does not extend to offenses other than murder. The death penalty still applies to offenses of treason; piracy with violence (Piracy Act 1837); arson in H.M. Dockyards (Dockyards Protection Act 1772); and to certain naval and military offenses under the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955. The main features of the act are:
1. The death penalty is abolished for murder, and the sentence of imprisonment for life substituted. This provision extends to trials before a court martial.
2. The court, in passing a sentence of life imprisonment, may recommend a minimum period that should elapse before the murderer is released from prison.
3. The Home Secretary must consult the Lord Chief Justice and the trial judge, if available, before using his powers to release on license under section 27 of the Prison Act 1952 a murderer sentenced to life imprisonment. If a murderer sentenced to life imprisonment is eventually released, he remains on license, and is liable to recall at any time at the discretion of the Home Secretary.
4. The Act has force for an initial period of 5 years, after which it will be reconsidered by Parliament.
Under section 61 of the Criminal Justice Act 1967 the Home Secretary may release a life sentence prisoner on license only if
the Parole Board so recommends. The provision comes into force on April 1, 1968.
On November 23, 1966, the House of Commons on a free vote refused a private member leave to introduce a bill to restore capital punishment for the murder of police and prison officers.
Parliament will be obliged to consider the law governing the penalty of murder again before July 31, 1970, since on that date the 1965 act expires unless Parliament otherwise determines by affirmative resolutions of both Houses.
Thus the movement for the abolition of capital punishment stretches over more than 250 years, from 1750 to 1964. It represents a checkered and fascinating chapter of criminal law and penal history of great interest to the English-speaking world. At the end of it, England had reached, or very nearly reached, the abolitionist status. It was a long and tortuous process, which cannot be regarded as having gone through its full cycle yet.
DIFFICULTIES IN PROPERLY ENFORCING THE DEATH PENALTY
If, when the Royal Commission was appointed, a referendum had been launched to know where the population of the United Kingdom stood with respect to capital punishment, I would guess that the majority (and a comfortable one) would have been in favor of retaining it. But the minority, though small, was an enlightened one, and, like all other minorities, was vociferous, determined, and deeply motivated. They were helped by the real objective difficulties encountered in the imposition and enforcement of capital sentences. These difficulties, I venture to say, may be relevant to your own preoccupations and I shall therefore indicate them briefly:
(1) Difficulties of redefining and amending the law of murder; retaining or abolishing the doctrine of constructive malice; extending the criteria of provocation; excluding certain additional categories of homicide from the definition of murder according to its degrees; mode of execution or premeditation. All existing attempts proved unsatisfactory simply because of the heterogeneous character of murder and the virtual impossibility of expressing its many shades in technical language-a necessity which is required whenever capital punishment is retained for murder.
(2) Second, the growing reluctance to avoid executing women and younger delinquents. Sex and age seem to be taken seriously into account in all civilized contemporary society when it comes to enforcing a sentence of capital punishment. Rightly or wrongly, it is felt that when these two factors come into play, they should exercise a restraining effect on the enforcement of capital law. It is felt that one should avoid putting to death women or young men.
(3) Third, there is confusion and often distortion with respect to the proper assessment of the mental state of the offender accused of a capital crime. It is said that much of the trouble we have applying any kind of rules to assess the mental state of such an offender (M'Naghten Rules, Durham Rule, and so forth) would disappear or at least recede into background if they were not connected with the infliction or noninfliction of the capital sentence.
(4) Juries rightly demanded a very high standard of proof before they would convict of murder. In addition, there was evidence that they sometimes returned verdicts of manslaughter, and more rarely of guilty but insane, or acquittal, in cases where there was little doubt the offender was guilty of murder.
(5) And last, but not least, the prerogative of mercy, used on the advice of the Home Secretary, to reprieve those already found guilty and sentenced to death, was much the most important factor in the nonenforcement of the death penalty.
During the past 50 years some 45 percent of condemned murderers had been so reprieved. This was seen as "the natural consequence of a law which has the basic defect of prescribing a single fixed automatic sentence for a crime that varies widely in character and culpability, and for which the penalty of death is often wholly inappropriate."
The Commission found three objections to this arrangement whereby the actual sentence was selected not by the court but by the executive. (a) The prerogative ought to be invoked only as an exceptional measure. It should interfere with the due processes of law only in those rare cases that could not be foreseen and provided for by the law itself.
(b) The Secretary of State should not act, in effect, as "an additional court of appeal, sitting in private, judging on the record only, and giving no reasons for his decisions." At the same time, the Commission accepted the arguments against requiring him to give reasons.
The wide gap between death sentences pronounced by the courts and death sentences executed was seen by some witnesses, especially the Archbishop of Canterbury, as reducing the sentence to a mere formula and thereby degrading the majesty of the criminal law. Others disagreed. The Commission thought that at least it was an anomaly that should be removed if practicable by altering the law.
THE LIKELIHOOD OF ERROR
Important as all these circumstances and factors may be, they become secondary when compared with the likelihood of judicial error. No sanction is perfect and (at least some of the limitations connected with the death sentence would be charged to the inevitable imperfection of our social and penal arrangements. But the likelihood of error in a capital case stands on a different footing altogether. If proved to have occurred, it would certainly produce an explosion of deep emotions in society at large. It could not fail to engender revulsion against capital punishment as such.
The possibility of wrongful conviction and miscarriage of justice in a capital case was barely touched upon. On the evidence of witnesses, and in view of the existence of so many safeguards (including the availability of the prerogative in any case where there was a shadow of doubt), it seemed virtually ruled out. In any case, it was not of direct concern to a commission charged with considering the limitation of capital punishment rather than its abolition.
But mention was made of the very rare cases where the Home Secretary might recommend a reprieve because, though the condemned had been rightly convicted on the trial evidence, there remained a