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"scintilla of doubt." As an illustration was given the case of a man convicted mainly on the evidence of another person with criminal antecedents, who, if the accused were really innocent, must himself have committed the murder.
THE CASE OF TIMOTHY JOHN EVANS
I now have to refer to the case of Timothy John Evans. It is a case which more than any other factor related to the enforcement of capital punishment in England helped to mobilize public support for a change in the law.
Among the most potent arguments used by abolitionists in Britain in the last decade has been the possibility that an innocent man_was possibly hanged in London in 1949. The case, that of Timothy John Evans, aroused little interest at the time, and appeared to be an ordinary murder case, in which the evidence was comparatively straightforward. Among the most important evidence was a confession by Evans that he had killed his wife and baby daughter.
The case aroused fresh attention in 1953 when the other male occupant of the house in which Evans had lived, John Christie, was convicted of murder and found to be a multimurderer whose various female victims were found lying under floorboards and in the garden of the house. It appeared that Christie had killed these women, including his wife, over a period of years, and in each case sexual gratification was the motive. As Christie had been a leading prosecution witness in the Evans case, considerable doubt was felt about the conviction of Evans, who was a man of very limited intelligence and could easily, it was argued, have made a false confession.
An official inquiry was held by Mr. John Scott Henderson, Q.C., before Christie was executed. This inquiry, which was completed in a short space of time, came firmly to the conclusion that Evans was guilty of the murder of both his wife and his daughter.
Many, however, remained unsatisfied, and detailed criticisms of the Scott Henderson report were put forward in many quarters in the succeeding years. In particular, Mr. Ludovic Kennedy, in a book written in 1961, vigorously defended Evans' innocence and attacked the Scott Henderson report. There were repeated demands to successive Home Secretaries for a fresh inquiry into the case, but these demands were consistently rejected until, in 1965, the Home Secretary appointed Mr. Justice Brabin to hold a fresh inquiry.
This new inquiry took a year, and was most thoroughly carried out. Mr. Justice Brabin stressed the difficulties under which he had worked, due to the time that had elapsed since the events of 1949. In these circumstances, he felt, to come to any conclusion beyond reasonable doubt was impossible. However, the terms of his inquiry did not restrict him to conclusions of this degree of certainty, and, after carefully weighing the evidence, he reached the conclusions (a) that it was more probable than not that Evans had killed his wife; (b) that it was more probable than not that Evans had not killed his daughter. Evans, however, had been convicted of the murder of his daughter, and was not tried for killing his wife. In these circumstances, the Home Secretary recommended a royal pardon in respect of the conviction, and this was granted.
THE DETERRENT EFFECT OF CAPITAL PUNISHMENT
This, as you realize, is a big subject in itself, a subject which has filled many hundred pages in every country of the world where capital punishment has been debated in order to justify its retention or its abolition. It is, I am afraid, a subject upon which sober and critical men allow themselves to be led along a path of phantasy and wishful thinking. I believe that what our Commission had to say on the subject still deserves careful notice. I hasten to add that my respected friend, Prof. Thorsten Sellin (whom I am delighted to see here), has helped enormously. Here is the gist of our reasoning, and again I can do no more than to put the communication before you in almost telegraphic terms.
Under this head the Commission found it "extraordinary difficult to find conclusive arguments either way" (p. 18, par. 55). The arguments, both for and against, fell into two main groups: (1) Arguments from commonsense and "human nature"; (2) Arguments from statistics.
1. "Commonsense" arguments
(a) The general a priori argument from human nature and the fear of death. This was supported by all ranks of police and prison services. The case was well put earlier by James Fitzjames Stephen: "All that a man has will he give for his life"-nothing is more feared than death, therefore nothing can be so effective a deterrent.
The counter-argument is that death is by no means certain even in a capital case: in the 50 years 1900-1949 there was only one execution for every 12 murders known to the police.
But against that it can be argued again that few potential offenders are likely to know how great is their chance of escape.
(b) The indirect effect in building up abhorrence of murder because it incurs the death penalty is at least equally important: "We think it is reasonable to suppose that the deterrent force of capital punishment operates not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder" (p. 20, par. 59).
(c) The special deterrent value of the death penalty in restraining professional criminals (i) from proceeding to murder to gain their ends or to silence a victim; (ii) from carrying arms. This again was strongly supported by police and prison services. No evidence from other countries that abolition had produced the consequence feared. But the Commission agreed that it was "inherently probable that, if capital punishment has any unique value as a deterrent, it is here that its effect would be chiefly felt and here that its value to the community would be greatest" (p. 21, par. 61).
2. Statistical arguments
Mostly collected by those favoring abolition. Countered by arguments that statistics are open to different interpretations, unreliable, or not valid for comparison.
Claim that abolition of capital punishment in other countries has not led to increase of murder or homicide. Can be based on either(a) comparisons between countries, or (b) trend of homicides
within a single country before and after abolition (this is a firmer basis).
(a) Comparisons between countries are misleading except within very narrow limits because of differences in
(i) legal definitions;
(ii) practices of prosecuting authorities and courts; (iii) methods of compiling statistics;
(iv) political, social, and economic conditions.
Where they were possible (e.g., between certain groups of States in the United States, and perhaps also between Australia and New Zealand) the Commission agreed with Sellin that "there is no clear evidence of any influence of the death penalty on the homicide rates of these States *** both death-penalty States and abolition States show rates which suggest that these rates are conditioned by factors other than the death penalty" (pp. 22-23, par. 64 and app. 6).
(b) "Before and after" comparisons within the same country. There were also difficulties about these.
(i) Many countries had no statistics of murders known to the police, only of commitments or convictions.
(ii) Again, gap between crimes committed and convictions could vary widely according to police efficiency, methods of recording, court attitudes.
(iii) Juries might be readier to convict once death penalty was abolished.
(iv) Statutory abolition in most countries was preceded by a long period when the death penalty was in abeyance or seldom enforced.
(v) It cannot safely be assumed that variations in the homicide rate after abolition are in fact due to abolition, rather than to other causes altogether or other causes in combination with abolition.
(c) The conclusions of the Commission under this head were: (i) There was some evidence that abolition might be followed for a short time by an increase in homicides and crimes of violence. (ii) But once a country became accustomed to abolition, it would not lead to an increase in the long run.
(iii) There was no clear evidence in any of the figures that abolition had led to an increase in the homicide rate or that its reintroduction had led to a fall.
(iv) The figures afforded no reliable evidence either way: too many other factors came into the question.
(v) "All we can say is that the deterrent value of punishment in general is liable to be exaggerated, and the effect of capital punishment specially so because of its drastic and sensational character" (p. 24, par. 67).
(General discussion on statistical evidence, pp. 22-24, pars. 62-67, and app. 6, pp. 339-380.)
The most recent statistical interpretations-how real are they? A distinguished high court judge of New York has given me the most up-to-date definition of statistics:
"Statistics," he said, "are like a bikini. What they reveal is significant and what they hide is vital." This naughty witticism may well apply to the present-day interpretations of the trend in the crime of murder, now advanced in England in more than one quarter, and
often with sharply conflicting motivations and differing conclusions. As you will remember, in 1957 the Homicide Act was passed. It retained the death penalty for murderers who had been previously convicted (recidivist murderers) and for four other defined categories of murder. It also introduced the concept of diminished responsibility, as a result of which a person charged with murder who put forth a successful defense on this count was convicted of manslaughter. You will also remember from my brief introductory account that in 1965 the Murder (abolition of the death penalty) Act of November 8, 1965, became the law of the country. Thus, the first change took place some 10 years ago, and was subsequently superseded by the radical change which was implemented roughly speaking hardly 2 years ago. How did the trend in the crime of murder react (if at all) to these legislative innovations? I shall not bother you with long statistical tables, but I shall put before you broad figures and a few basic com
1. The first thing to remember is that until quite recently England was passing through a persistent, widespread, and steep increase of crime in general and of virtually all kinds of crime in particular. If the rate for the volume of indictable crime for 1950 is taken as a hundred, by 1957 the rate went up to over 118; by 1962 to over 194, and in 1966 to as much as 260. In absolute figures it rose from slightly under one-half million (461,435) to nearly 1,200,000 (1,199,859). In the same period violent offenses rose from 100 (1950) to 175.4 (1957), to 287.2 (1962), and to as much as 427.5 in 1966. In absolute figures from just over 6,000 (6,249) to nearly 27,000 (26,716).
In such a period it would be very surprising if the crime of murder alone had remained static; indeed, it would be logical to assume that the trend in murder should be seen as part of the whole picture of crime in relation to which any change in the law of murder would be of secondary importance. What has happened is this: From 1950 to 1966 murder went up from 100 (as a rate) to 147.1, or in absolute figures from 138 to 203. It is thus important to note that when compared with the total rate of indictable crime in general and of crimes of violence in particular, the increase in murder has been much less drastic.
2. The other factors to be taken into account are that during the last decade the definition of murder has been altered several times and these changes had different effects on the statistical pattern of murder.
There are also difficulties in recording the crime of murder. Not all murders may come to light; and some which are discovered years later may be too late for inclusion in the relevant statistics. On the other hand, some events which are provisionally recorded as murders by the police may in fact not be. In the case of detected offenses, corrections in the light of legal proceedings are made to the statistics (up to the time of publication); but of course in the 10 percent of undetected offenses no such correction is possible. Further, in the case of acquittal, the crime remains classified as murder (since it is possible the accused was guilty but acquitted for, e.g., lack of evidence); but the home office research unit has estimated that in about half such cases there was no murder-and if this is so, then "the number of
offenses finally recorded as murder each year may be on average about 5 percent too high."
4. All these problems are exacerbated by the relatively small number of recorded murders in England and Wales each year, varying between a maximum of 35 per year and a minimum of 15, to take the latest period of 10 years. This has the effect of making small absolute changes look proportionately of considerable (not to say excessive) significance. This also emphasizes the danger of relying on figures for 1 or 2 years in isolation. The figures went up from 22 in 1957 to 35 in 1966. On the basis of this, opponents of the abolition of the death penalty have argued that capital punishment should be reinstituted since the rate for 1965-66 was about double that of 1963-64. To this the abolitionists replied that variations from one year to another are considerable, and that the numbers are small, so that as has been said, "It is possible to get quite big differences between sets of figures for 2 years": for example, the average for 1959-60 would be 53, and for 1962-63-33.4
Senator, the overall conclusion is that it is entirely unsafe and rather speculative to draw any kind of solid conclusion one way or another, and that the effect of the 1965 act suspending capital punishment cannot be yet assessed from statistics at present available.
What the future holds is difficult to foresee. And one must always remember that statistics are by no means the only consideration affecting the question of whether or not there should be capital punishment for the crime of murder. Statistics are relevant to the extent that they can throw light on the question of whether or not the death penalty is such a deterrent to murder that it ought to be made available regardless of any other consideration. But again may I emphasize that it is still too early to draw even purely statistical deductions about the effect of the 1965 act.
The alternative to capital punishment; a grave social and penal responsibility
May I preface this by giving three illustrations of past penal history. In Russia, Catherine the Great abolished capital punishment, and homage was paid to her by all the philosophers of the period. But an English visitor to that country noticed the alternative that had been substituted for the death penalty. Offenders were subjected to 333 lashes of the knout instead. Joseph II of Austria also abolished capital punishment, and he, too, was singled out by philosophers as a great liberal of the period. But again a contemporary traveler recorded the following impression of prisoners, who, instead of being put to death were manning galleys. "A Danube vessel towed by human beings is so repulsive a spectacle that even an executioner who has become familiar with breaking upon the wheel will turn his eyes away."
The great Edward Livingstone was very much in advance of his time when he proposed abolition of capital punishment in his system
3 It is difficult to make comparisons betwen countries with respect to the rate of crime. It is particularly so with respect to the United States in view of the size of the country, number of jurisdictions, and variations in the definition of murder, etc. However, there can be no doubt that the difference in the rate of murder between the United States and the United Kingdom is very considerable. The figure of 48 murders per million population in the United States, as compared with six is frequently quoted as an indication of the difference.
4 1952, 22; 1958, 18; 1959, 23; 1961, 18; 1962, 18; 1963, 15; 1964, 20; 1965, 32; 1966, 35.