« PreviousContinue »
of penal law for the State of Louisiana. But the substitute that he proposed, permanent segregation, was frightening in its inhuman souldestroying regime.
Mr. Chairman, it is fairly easy to do away with capital punishment, but it is much more difficult to build up an alternative that would not shock our conscience, and that would combine humanity with safe containment, that would prevent the destruction of personality through the slow and inexorable weight of very long incarceration. I was again made aware of this when I was asked to be the chairman of a committee to investigate the regime for maximum security prisons. The abolition of capital punishment imposes social and moral responsibility which it is much too easy to escape.
Capital punishment in the comparative context
Already the Royal Commission had noticed that capital punishment was fading away. Since then the process has become even more accentuated. As the chairman of the Scientific Criminological Council set up by the Council of Europe in Strasbourg, I have ample opportunity to observe the recent trends in Western Europe. Both the Council of Europe and the United Nations have kept the subject under review in their excellent recent inquiries.
But may I draw your attention to the most recent publication just issued under the auspices of the United Nations (Department of Economic and Social Affairs), entitled "Capital Punishment Developments-1961-65," prepared by the Criminological Center of the Chicago Law School, so ably directed by Prof. Norval Morris. Note: This publication is available for examination in the files of the subcommittee.]
Senator HART. Thank you. I have no doubt that your classes are interesting and exciting places, and we are all delighted that you would spend this morning with us.
The way you summarized the paper also obliges us to thank you. But as you were summarizing, I read some of the more detailed presentation which will be part of the record and I suspect it will be required reading for anyone in our country or any place else who attempts to develop a clearer understanding of what is involved in capital punishment.
You are the first witness who has suggested that while the abolition of capital punishment is easy, a substitute is not so easy to come by. Do you make any prediction as to what Parliament's decision will be in 1970 when the period of suspension terminates?
Mr. RADZINOWICZ. Mr. Chairman, I avoid being a prophet not because I don't like the profession as a vocation but I find it extremely difficult. It is difficult to know what the attitude will be. Assume that murder goes up substantially and the general state of crime goes up. Then the issue becomes an emotionally loaded issue. It may even become a political issue, and then it is very difficult to know what may happen.
If murder moves as it is now, I believe that Parliament would finally do away with it, because the other system was so bad. It is so difficult to have a good capital punishment law enforcement system, that if there is no absolute necessity to retain it, enlightened societies are rightly or wrongly, I am not expressing an opinion now, in favor
of abolishment. So if there is some extraordinary trouble, like, for instance, the killing of three or four policemen—we had a case like this only a few months ago, our police are not armed this may change. Public opinion is terribly sensitive to the issue of capital punishment. It is emotional. It is erratic. This is all I can say.
Senator HART. I have just one other queston on which I welcome your reaction. You indicated that the statistics, or do I understand you correctly, that you are saying that the statistics neither prove the deterrent power of capital punishment, nor do they disprove? Is that the correct summary?
Mr. RADZINOWICZ. The summary would be as follows: First, there is some evidence that abolition might be followed for a short time by an increase in homicides and crimes of violence, a short time.
Second, once a country became accustomed to abolition, it would not lead to an increase in the long run.
Third, there is no clear evidence in any of the figures that abolition had led to an increase in the homicide rate or that its reintroduction has led to this one way or the other. The figures afforded no reliable evidence either way, because too many other factors came into question.
And then comes the statement all that we can say is that the deterrent value of punishment in general is liable to be exaggerated, and the effect of capital punishment especially so because of its drastic and sensational character.
This is as far as we went, and we have examined thoroughly our position in the country before and after, between the countries, in a country for a very long time, and we could reach no greater conclusions than this one.
Senator HART. It is a thoughtful conclusion that the Commission reached, and as usual as is so often true with thoughtful positions, it doesn't lend itself to a ready handle and label as to the conclusion. But let me push just a little further on this.
Let's assume that the general conclusion could be put that the existence of capital punishment so far as the figures are concerned does not prove that it is an effective deterrent. Would it be a sound position to take that in a society such as Western civilization claims, we have developed the burden of proof should be on society before it takes a life, and since the statistics do not establish that it is a deterrent, that the burden has not been carried, and therefore abolition would be the appropriate action. Would you buy that oversimplified reasoning?
Mr. RADZINOWICZ. Senator Hart, I don't think it is oversimplified. I think if I may say so, you have put your finger on something which is of vital importance to the whole issue.
I would add this very briefly to avoid any kind of confusion. My first point would be that 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. There are other considerations that you have to take into account, whether we should or should not have capital punishment, which may be even more important than the statistics. And the statistics used are of limited value, only as far as they can throw light as to what extent the death penalty is a deterrent in our penal colony.
Next, certainly in view of the fact that capital punishment is a supreme penalty, and in view of the fact that there are other circumstances that are very important, our conscience, the danger of an error, the division of opinion and all these other kinds of things, it is the duty in contemporary societies to prove the case of capital punishment. The proof of murder must in fairness be put on those who are in favor of capital punishment, because it is this which makes the difference. Having or not having is the difference. It is a difference which is so grave that those who feel that it should be retained must prove that it is absolutely necessary to have it.
Absolutely may be too strong because nothing is absolute in this life, but there is a heavy, a very decisive volume of evidence of one kind or another which justifies it. Did I reply to your question? Senator HART. Indeed you did.
Thank you very much.
Mr. PAISLEY. Just one or two questions.
Mr. RADZINOWICZ. Yes.
Mr. PAISLEY. Can you give us any idea how long a so-called lifer stay is incarcerated in England, on an average?
Mr. RADZINOWICZ. There is a fundamental difference between your country and ours in relation to the length of sentence, or there used to be. We were a country of relatively short terms of imprisonment. We had no parallel system. We had a lot of probation, and to us a sentence of 5 years is quite a serious sentence, and until quite recently people sentenced to imprisonment for life wouldn't stay, as a general rule, longer than 10 or 12 years, because, as I say, there was a tendency against long sentences. It is also felt that, after 10 or 12 years, the personality disintegrates to such an extent that it really is not justifiable in human terms to keep the person longer. But, sir, lately in view of the emergency of certain crimes, for instance, the train robbers, the killing of the three policemen and certain gang warfare, long sentences have been given of 20 or 25 years, and of imprisonment for life, on a much larger scale, and we now have a small group of people, very small, 150, that we would regard as maximum security prisoners, and who may well stay there for the rest of their natural lives. Before it was 10 or 12 years.
It is also true to say, sir, that those who were sentenced to death up to a few years ago on the whole did not present great problems, but the people whom we have now, the maximum security prisoners are of a different caliber altogether, and you may have noticed we had trouble only a few weeks ago in one of the maximum security prisons. So we are now facing a problem, as I said before. Your problems of today are becoming our problems of tomorrow. We are now facing for the first time in the penal history of our country how to deal with offenders who may have to stay 20, 25, or even 30 years in prison, and who go there when they are still young.
Mr. PAISLEY. You spoke about a slight increase in murders or capital offenses after the abolition of capital punishment.
Mr. RADZINOWICZ. Yes.
Mr. PAISLEY. Did I understand you to say that was in England? Mr. RADZINOWICZ. In England, and I have provided the statistics my table. There is a difference there between maybe 10 or 12 cases,
but it is too short a period, too small figures, and also it may well be that the jury now, because capital punishment has been abolished, are more likely to sentence people for murder than they used to be before when capital punishment was in force. It is a point which I did not mention in my memorandum but which ought to be included in the record.
Mr. PAISLEY. Just one other question that might be relevant in consideration of this problem. Do you know whether or not the Communist countries have abolished capital punishment?
Mr. RADZINOWICZ. The Communist countries had an interesting attitude about it. In Soviet Russia at first, when the Bolsheviks took power, they really did feel that the best way of showing that there is no crime in the Socialist country is to suppress criminal statistics, and criminal statistics have been suppressed. Capital punishment has been quite extensively used. Then it was abolished, replaced by long sentences. Now it has been reintroduced again and it has been reintroduced for certain offenses, even against property, not only offenses against the person.
In Poland capital punishment has been appointed, is in the criminal code for a great number of offenses, at least 10 offenses. I should have thought that the same applies to Bulgaria and Czechoslovakia. I do not know what the position in Yugoslavia is. I don't know whether they have capital punishment. Therefore, on the whole I would say that they do have capital punishment now. They sometimes abolish it, and then again they reintroduce it. But they do have capital punish
Mr. PAISLEY. Thank you very much.
Senator HART. I think your question should remind us that the committee ought to ask the Library of Congress to prepare, and there will be printed in this record, an accurate summary of the nations where capital punishment is in effect, and some indication both of the crimes which carry capital punishment and if at all possible some indication of the frequency of the executions. I think that would be of value. [Note: See, "Capital Punishment," United Nations Report, 1968, in subcommittee files.]
Professor, you have been exciting as well as helpful and we are grateful.
Mr. RADZINOWICZ. Thank you very much. I was honored to be invited.
STATEMENT OF PHILIP HANSEN, ATTORNEY GENERAL OF THE STATE OF UTAH
Mr. HANSEN. Senator, I stand here with mixed emotions if you can use the two words together, humble and proud, proud that I have been asked to attempt to make a contribution and humble in realizing my
inadequacies in associating myself with those distinguished witnesses who have preceded me and who are to follow me.
As I have sat through the session this morning, and as I have reminisced some of the past, I can't help but think that those who are for capital punishment are those who are uninformed.
My 17-year-old boy, Steven L. Hansen, who is with me today, made the comment last night: "How come, Dad, it is so obvious to us that the death penalty should be abolished, and yet there are those that still want it retained who seem equally as sincere."
And upon an analysis of that inquiry, it is pretty obvious that the person that is for capital punishment, and I care not who he is or what he is, he is for it toward the stranger. He is for it toward one about which he is not informed, and in most cases about which the subject is not informed. The moral person delves into the statistics. The more a person delves into the statistics, the more a person delves into the realities of life, the more he realizes that all the waters of all the seas cannot wash away the stain on any society that retains the death penalty.
Without touching on the religious aspects, without touching on the barbaric aspects, without being hysterical, permit me to be historical in substantiating my position that as we become more intelligent, as we become better informed, the more obvious it is that there is no place in an enlightened society for the death penalty. You can trace it rather rapidly from the days of the caveman carrying the club and being impulsive and animalistic in killing that which bothers him up to the modern day where, although the Congress and you people specifically are to be praised for your congressional leadership in leading many of our retarded State legislatures out of the wilderness, we see that the older the country, the historical significance as outlined earlier of the development of the European countries now numbering 73, I believe as to those that have abolished capital punishment, they are older, they are more mature than this comparatively young Nation of ours. They are in most instances more highly cultured in the arts, more renowned in many of the science fields, and are more humane as they deal with the problems such as capital punishment than the United States in its infancy.
This is somewhat analogous to a situation of a father and son. The older man, if he is adequate, should be more intelligent than the son, and he should set an example. And as the rambunctious youth becomes more mellow and better informed, he realizes that there should be more compassion, love, and understanding, more forgiveness and tolerance, help rather than hurt, and he realizes these values of life. Now, this is what we are gradually doing in America. Thirteen States have abolished capital punishment. That is a far cry from the 37 that remain, and I sincerely hope that the courage and the statesmanship that you have taken in bringing this before the Senate and