the Congress for the first time in American history will serve as an example and give courage to those that have been more timid in the past on the legislative basis statewide. If you don't act soon, and if the respective States don't act soon, I feel confident though the U.S. Supreme Court has heretofore held the death penalty not to be cruel and unusual punishment, that it will be stricken down and we won't have to await legislative and congressional acts, but I think that we ought to do it before, so that we cannot be accused of retardation on a subject that is so long overdue to be tackled.

Now, I have been a judge, I have been a defense lawyer. I have been a prosecutor. As the chief law enforcement officer of the State of Utah, I make the plea that somewhere along the line you, as our leaders and our legislators, for the future will permit us to practice law with intellect rather than emotion, will permit us to practice law, though perhaps it is wise that the lag of the law is slower than that of our culture, so that we don't have sporadic and impulsive change too often. Antiquity does not necessarily deserve reverence and when we find something that is wrong we ought to attack it, and we ought to seek out its solution.

It seems that most people in public office are more concerned with their purse and with their politics and their popularity rather than being concerned with people and with problems and with principle.

I think that if we were to practice medicine as we practice law, they would think we were back in the days of the Spanish Inquisition. We practice law somewhat to the effect now of emotional stampedes, letting juries, mind you, triers of the fact, usurp the judicial duty of the judge, the court itself in the imposition of sentence, and we know that for the various reasons that I am sure have been stated in yesterday's hearings and thus far today and those that will follow, that the poor, the colored and the underprivileged are always the prey, the victim. You never see a wealthy man getting killed by the State. You read the chiseled marble, "Equal justice under the law" on the Supreme Court Building and you wish it were so but you know it isn't because people are human beings and they have imperfections. If we were to be in the status symbol of going to a psychiatrist, and he were to tell us that we were immature as an individual because we do not meet our responsibilities, and yet when society does not meet its responsibilities because of the splitting of responsibility such as a jury of 12 rather than putting it on the shoulders of one man, the judge, to make the decision, when responsibility is split, it is not assumed. We see that society has a problem, and yet we don't try to solve it.

We think, well, it is popular to say we are against crime, so let's beef up the police force. Everybody is against crime, and nobody is advocating coddling a criminal. But when you stop to think not only in the area of capital punishment but in criminology generally we have our head in the sand, and we think that with an arbitrary sentence of a period of time, by taking a person out of society or forever by capital punishment that we are going to solve the problem of killing, we are going to solve the problem of crime.

We seem to concentrate on the theory of "Let's capture and incarcerate" rather than where we should stand, "Let's treat and educate."

We take a person that has committed a crime and we put him in prison. We don't tell him, scientifically, at least what caused it. We don't tell him what the real reason is.

If he has been given probation or parole, or if he has had one sentence and it is light, the next one is more severe and the average judge will say, "My word, don't you ever learn your lesson? You had a chance and you flubbed it."

You put him down in prison without adequate segregation. In Utah-we are probably run of the mill with other less fortunate States we have for approximately 714 inmates the services of a psychiatrist for a half a day a month.

For

every crime there must be a concurring act with an intent, and we know that you cannot separate the mind from the body and we know, even though they say psychiatry is in its infancy, that there are many principles of psychiatry and psychology from which we should learn what makes man tick.

He is a complex bird, granted, but because we don't have the answer today doesn't mean that we should just turn our head and not attempt to solve it for tomorrow.

I have heard questions, would you favor life imprisonment forever as an alternative to capital punishment? What is the average time that a person serves for a death penalty, and how many years do you think there should be.

How can you be arbitrary with the complexities of humanity? Do the doctors say he who has cancer must stay in the hospital for a certain period of time regardless of whether we treat him, regardless of whether we cure him, because society has arbitrarily said we don't know the answer to cancer, so let's put him away for awhile?

If I were to walk into my doctor and he were to say, "My word, you have syphillis, I am going to sentence you to 6 months in the hospital, he doesn't treat me, he doesn't tell me how I got it, he doesn't do anything to cure me. He sentences me arbitrarily for a period of time in the hospital, with a little bit of skill and little bit of luck from the opposite sex I spread it while in the hospital, it becomes more aggravated within my own system. I serve my arbitrary period of time and then I am released, and when I am back in society my odds are a little better and I scatter it a little further and it becomes more complicated still within myself, and we wonder why doesn't he ever learn. He has still got syphillis.

We wonder why society has this illness. And yet this is the way we practice law. We don't realize that there is a cause for every effect. We don't realize that prisoners, killers, if you please, are human beings. They are like the ice cube that floats in the glass, as my eighth grade general science teacher taught me, nine-tenths under the surface.

People are this way. You can't judge the fiber of the man by the title of his office any more than you can the fiber of the cloth in his coat by the label in the lining. You have got to dig down underneath that surface. You can't, whether you are a jury or whether you are a judge or whether you are a Senator or whether you are king or any other person, you cannot, by seeing the surface, expect to know the person.

I have represented 46 murder cases, first degree murder cases, as a defense lawyer. I have tried in excess of 5,000 cases that has required

one or more court appearance in three different States, and the more I am exposed to this situation called crime, the more I realize that it is a problem of society that must be solved, not ignored or not pounded on the head.

You don't take your child that breaks an expensive piece of Dresden and hit him in the head with an axe because the value of the article was supreme. Why should you take a life because the value of a life is supreme. If you are going to say "kill because you killed," you might as well use the example that was used in the Utah prison, rape because you were raped.

We have a case, a rather classic case in the State of Utah, the Jesse Garcia case. Jesse Garcia was raised in the same bed where and while his own mother practiced prostitution. He had sisters that were around the house with different boy friends that he in his tender age thought were his brother-in-laws. He lived on animalistic impulse. When he was hungry he looked for something to eat, when he was sleepy, he lay down and slept and when he wanted something he stole it or got it one way or another.

When he was 3, 4, 5 years old, he would pick on little kids, steal their pennies, gum, paper-kids on the corner. At the age of 7 years when he legally became liable for his criminal acts, he ended up in the industrial school. Unfortunately, our problems are there too. I quipped once that ours was a prep school for prison, and the administration got a little disturbed, but I can document it.

We have got to start young. Jesse Garcia was the product of our institutions. He was in and out of industrial school until he was 15 years old, when he raped his 5-year-old niece. She screamed and he ran and committed, admittedly, according to his own figures, about 37 burglaries before he was caught. But he pleaded guilty without benefit of lawyer or anything else, for the crime of rape, and it carries a 20-year to life sentence.

He was 15 years old when this happened, and during the interim before going to prison, while in the county jail, he turned 16. The day that he walked into the Utah State Prison, one of these believed to be brother-in-laws handed him a knife, an inmate handed this new inmate a knife, and said, "Here, you are going to need this. They don't like sex offenders, and they are going to kill you after mess, the evening meal."

After mess a bunch of them gathered around him and four or five of them with knife points pricked at his arms, chest and back, threatened to kill him. Joe Valdez, the Mexican leader of the Mexican element of the Utah State Prison, put his arms around Jesse Garcia and said, "This is America. We are going to give you a fair trial." And they had a kangaroo court, conducted within the walls of the Utah State Prison, where judge, jury, defense counsel, prosecutor, witnesses, spec

tators were all inmates.

The findings, "You are guilty of rape. We sentence you to rape." And 26 men at knife point, with him on his hands and knees had sexual relations with this young boy, and Joe Valdez, after it was all over, put his arm around Jesse once more, with the spirit of friendship, and said, "You be my punk and you won't have to put up with the rest of them because they fear my element here." Through a fit of jealousy Joe Valdez almost killed him at one time with an axe that he had hidden

because he was sitting too close to another fellow at a prison movie one evening and others pulled Valdez off Garcia and said, "Why waste your life on this kid," and Joe Valdez sold Jesse Garcia to Mack Riffenberg, another inmate leader, who had gone through this cycle and was older in prison life, for 15 Drenova pills, a trade name for pep pills, as I am sure you are aware.

Then Jesse became involved in a prison murder because this pill racket of Riffenberg's was discovered, and was going to be "finked on," as they use in the jargon of the prisons, and Riffenberg and others planned to murder.

Now, in this case society developed Jesse Garcia. Society isn't smart enough to catch a problem that early when it had that boy in its custody in its institutions, at the very earliest possible age, and I am sure if I had been more adequate in my historical development of the background of this case I would have seen probably State welfare records, where they were aware of the conditions of this family, but the conditions were ignored because it was an ugly problem not to be solved.

Now they say drop a bomb on the prison. They are all bad, they are all convicts. You wouldn't have to call an orthopedic surgeon to repair my fractured arm for patting myself on the back if I were to be arrogant enough to say that I am competent enough as a prosecutor, as anybody worth his salt, that if given the facts, I could convict each and every one in this room of having committed a crime. All of us have lied. All of us have stolen. All of us have hurt others unjustifiably. All of us haven't been caught. All of us haven't ended up in this snare.

You can document case after case after case where two young kids pull a caper. One gets caught. The other turns the corner and gets away. The one that turned the corner and got away usually ends up as what we call a law-abiding successful citizen. The one that gets caught in that first snare starts with a record of some kind. Society brands the name convict, criminal, on him, wonders why they go back to prison when they won't hire them themselves.

I hired an ex-convict when I became Attorney General and the local papers that are represented here today criticized me editorially. Imagine, the chief law enforcement office, an ex-defense counsel, hiring an ex-convict. And they wonder why they go back to prison.

This is like a game of football, and then without knowing there is another set of rules you go in to play basketball and you tackle and you block and you foul out. This is what we do with our prisons. We put a person down there and he learns a game of rules that couldn't possibly be applied to everyday life.

He comes out into society, and he tackles and he blocks and he goes back and you say why.

Why can't we realize that everybody that steals isn't the same. Everybody that kills isn't the same. We are all individuals.

If you have three children, for example, maybe one of them needs a pat on the back. Maybe another needs a kick a little bit lower down in the same general area. Maybe one needs a helping hand. But they are different. And we have got to realize that prisoners are this way. We can't sit in our position of smugness and pass judgment on others, and think that we are going to solve the problem. If for no other reason, and believe me, I don't believe in using human beings as guinea pigs, but if for no other reason, we should keep these people that we

call mad dog killers alive, so that we can study them, so that we can find out what caused this particular guy to do this particular act, so that we can have pattern of what caused a lot of guys to do a lot of acts, so that we can calculate risks that we are to assume in becoming an educated and enlightened society to solve our problems, so that we can prevent, at least cure, at least try.

How can you arbitrarily say how long it is going to be before a person can be rehabilitated? Think of the thousands, the millions that we use for research for the cause of cancer, for the cause of leprosy, for the cause of heart problems, for all of these medical problems.

I kind of have tongue in cheek when I think we as lawyers are supposed to be smart enough to advise doctors, and yet they are so much further ahead of us in educating the people on how they should be received. Why can't we become this scientific? Why can't we dig down underneath the surface? Why can't we realize, as we reflect and as we recall and as we should remember well, that no man, no man is worthy of passing judgment on another.

We all have faults. And the fact that I say my faults are less than yours, to quote Gershwin in "Porgy and Bess," "ain't necessarily so." If we would try to help to understand what caused Speck or another to kill, maybe tomorrow we could prevent eight other nurses from being killed. Maybe tomorrow we could prevent future Boston stranglers. Maybe tomorrow we would be able to say we are really trying. We are really moving forward.

I stand here with shame to admit that the body that I will graciously refer to as our last legislature in the State of Utah attempted to pass a bill for the mandatory death penalty, just because someone else introduced a bill for the abolition of capital punishment, tit for tat, venegeance. That is all capital punishment is.

They might say they are for capital punishment, but they wouldn't say that if they were pointing their finger towards their own mother, toward their own child, toward their own self. They wouldn't want to put someone in the seat that we use for execution in Utah, if they knew beans about him.

I have two friends here now with me, Tommy Saterio and Leo Saterio who are pharmacists by profession. They are now in medical school and have a brother, Gus, who is also a pharmacist. They are scientifically oriented, and we discussed this comparison of law and medicine, and they shake their heads and they can't understand why we in the legal field are so fundamentally retarded. I explained the death scene, though I have never seen it, but again can document it with other statistics, in the State of Utah, and they shudder.

Do you know how the death penalty is carried out in the State of Utah? By the way, we are a rather distinguished State in that we give them a choice. They may either be hanged or they may be shot.

The last person who was hanged was a few years back, and-he, by the way, was mentally deficient-he only did it because it cost the State of Utah more to build the scaffold than its inexpensive seat of execution otherwise.

I am a Mormon, and yet there are those within the leaders of my church that say capital punishment is a commandment of God. Even your rabbis do not say the "eye for an eye and a tooth for a tooth,” that which was the Mosaic law, was one for retribution. There was