one for recompense. And nowhere in the mission of Christ can you see any hint of his advocating capital punishment.

On the contrary, you see a classic example of the adultress that was taken to him where death by stoning was the penalty, and that is when he said, "Ye among you who are without sin cast the first stone." When he himself was crucified he didn't say, "You be sure and pay these guys back, give them vengeance."

You be sure that Jerusalem goes down in history as favoring capital punishment.

On the contrary he probably uttered the most famous words in history when he was hanging from the cross with his torn ankles and mouth bleeding and his whole body wracked with pain. He said, “Father, forgive them for they know not what they do.

Why can't we? We must.

Senator HART. General, thank you very much.

You should be one of the last men in the profession to argue against the elimination of emotion with the substitution of intellect for it. The way you approach a jury, I am sure you do it both ways, but I am sure you are under no handicap with your present style.

Mr. HANSEN. I am out of practice. You have to think on your feet as a trial lawyer. You can take things under advisement as the Attorney General.

Senator HART. Very early in your remarks you said something that I noted, and until this morning it had not filtered through to me, but I return to it again. You said that your son, 17, was here yesterday and commented to you or asked you why it is so clear that it is wrong, why are there those who insist that capital punishment is of value.

Then at the very opening of our hearings today, Douglas Lyons spoke eloquently the attitude of several thousand young Americans in opposition to what they call legalized murder.

Maybe it is that generation that will have to mobilize in order to persuade the Utah Legislature that that Hobson's choice which you describe is just

Mr. HANSEN. Shameful.
Senator HART. Outrageous.

Mr. HANSEN. Barbaric.

Senator HART. Will you be hanged or will you be shot.
Mr. Paisley.

Mr. PAISLEY. I have one or two questions.

Mr. Hansen, in Utah can the jury recommend mercy if they find a man guilty?

Mr. HANSEN. Yes. The death penalty is mandatory if the jury just finds guilt. The jury has to take the initiative to go one step further and act toward its recommendation. Then it becomes discretionary. Only twice in the history of the State of Utah has a trial judge overridden the recommendation of leniency made by a jury. On both occasions the sentence was commuted to life by the board of pardons.

Mr. PAISLEY. I think the present Federal law is that the jury can recommend mercy. Now, if the jury finds the accused guilty beyond a reasonable doubt, which they must do, and fails to recommend mercy, that is a pretty good indication that the crime was pretty serious, isn't it?

Mr. HANSEN. No, not at all. Juries are not qualified to pass sentence. To revert back a moment to the Garcia case again, there were three defendants in this case. I represented two of them, the two young fellows. The other one's name was Bowen.

Bowen was from a Mormon family with a good background, a boy that had gone to school, had a high IQ, played the violin, had some talents and what not, and I represented that case jointly with Riffenberg's trial, and Garcia's case followed it, because of their having filed differently because of his age.

I totally forgot, in my manner of not coming prepared, I developed another field that I had in my summation, and I totally forgot my plea against capital punishment.

Riffenberg was given the death penalty, Bowen was given leniency. Later Garcia was given the death penalty and it took me 411⁄2 years to get that one done way. Riffenberg committed suicide in prison. But here we are, the same jury, the same fact, the same crime, the same defendants, different penalties.

That wasn't the severity of the crime, and it isn't the severity of the penalty that deters. It is the certainty. Anybody with a speaking acquaintance with criminology will bear that out.

Mr. PAISLEY. I don't want to stop you, but don't you feel or do you feel that the fact that first the jury must convict, second, they must fail to recommend mercy, and third, that if there has been a mistake made by the jury, that there is an appeal to the chief executive, don't you think that is a pretty good safeguard, about as well as society can do? Mr. HANSEN. Absolutely not.

Mr. PAISLEY. You don't?

Mr. HANSEN. For these reasons. You have a trial. You have the jury. You have the verdict. The sentence is mandatory. That means that the judge is nothing but a rubber stamp in his capacity for the jury in its capacity. So the jury says, with 12 of them there, split responsibility, "Well, I had some doubts. I wanted to give him life, but these other guys talked me into it finally, so I could go home," whatever the reasons are "we all give it to him so it is not all my responsibility." The judge says, "I have nothing to be ashamed of. All I did was carry out the jury's verdict."

And so the prosecutor says, "All I did was carry out the case, it is not my fault."

Mr. PAISLEY. You don't mean to say that the chief executive of the 50 States, and the President if he has occasion to pass on it, would just do a perfunctory job, do you?

Mr. HANSEN. In this example I am giving it is mandatory that they do just that. They have no choice. The death penalty is carried out. Then they go down and the warden now, it used to be the county sheriff in Utah, he carries out the execution for the same reason.

The board of pardons could, but ordinarily on some occasions does and on some occasions doesn't.

Mr. PAISLEY. I am talking about the chief executive of the State. Mr. HANSEN. Utah has no such provision. The power of pardon is strictly with the board of pardons, not the Governor.

Mr. PAISLEY. Then you feel that there is a very good chance that many people will be executed in this country when they are not guilty, is that right?

Mr. HANSEN. Precisely. We have another case that is pending in Utah now, the case of Darrell Devere Polson, who raped and murdered a little 11-year-old girl. Darrell Devere Polson was an inmate of another institution in the State of Utah, the American Training School for Handicapped Children. The State of Utah declared Darrell Devere Polson insane for purposes of sterilization.

The State of Utah says Darrell Devere Polson is sane for purposes of execution. The State of Utah went through this trial with a conviction from the date of the crime through the trial, within 30 days, whipped it through our supreme court. Now it has been taken, with some of these other more sane tactics, such as your Federal procedures of writs, and the State of Utah Supreme Court and trial judge denied him a stay of execution pending his appeal to the Supreme Court.

The defense lawyer called the Justice here and at first blush the Justice that was called denied his request for a stay and he was to die the next morning, and I called and asked him as the prosecutor of the State. And I was criticized quite severely for, as the prosecutor, keeping this guy alive.

Now, there are more basic truths and values in things just as supreme, such as our Constitution, as there is in guilt or innocence. He has the right to conclude his appeal and the State of Utah said, “Oh, yes, you may go ahead and have your lawyer perfect an appeal. In the meantime die and we will send the results by airmail."

Mr. PAISLEY. I don't want to stop you but I have two or three questions that I would like to have answered as concisely as you can, because I know that time is limited, and there are other witnesses. But I would like to ask you this. The testimony this morning was that the latest Gallup poll showed 38 percent of the people polled were opposed to abolishing capital punishment.

Mr. HANSEN. What were the percentages?

Mr. PAISLEY. Thirty-eight. That is the way I understood it. Now, what recommendation, what alternative do you have to recommend as an informed person in this area, that would probably satisfy those people who are concerned about abolishing the death penalty? Do you have any y?

Mr. HANSEN. Educating them.

Mr. PAISLEY. Educating who?

Mr. HANSEN. The public. First as an alternative, I am diametrically opposed to the death penalty. I am diametrically opposed to life imprisonment.

I

Mr. PAISLEY. So am I.

Mr. HANSEN. I am diametrically opposed to any set period of time. say take a person that poses a problem to society and remove him from society and if the State of Utah or the United States isn't great enough and glorious enough in all of its majesty to protect society, whether it is by competent boards of pardons, in knowing when to release a person or whether it is by the care and treatment that they get while they are there, some way or another society ought to be big enough to protect itself so that this guy doesn't run out and start killing again, which is really a fantasy rather than fact.

But I say this. Take that person out of society that poses the problem of violence, understand him, treat him, educate him, and calculate the risk later on when he is to be released.

39-394-70-6

The Loeb-Leopold matter, nobody will deny the rehabilitation of Leopold, and yet arbitrary intervention. Darrow says life imprisonment. Darrow was smart there because he wouldn't let them split the responsibility. He went through the procedure of putting the responsibility on one man, the judge, and he said life imprisonment against that. He had to because he was so far advanced in the reasoning. We don't have to do that today. Polls be damned. We that are supposed to be the enlightened leaders in any field ought to educate the people so that they can recognize the problem, and as they recognize it perhaps the solution will be there.

Mr. PAISLEY. I understood you to say that you thought the Supreme Court would soon declare capital punishment to be cruel and unusual punishment and therefore unconstitutional. Is that what you said? Just answer me yes or no.

Mr. HANSEN. Well, I can't categorically. That is only part of it. I think they are going to hold it unconstitutional, perhaps not as cruel and unusual punishment, so they don't have to distinguish in past cases. Perhaps on the deprivation of equality.

Mr. PAISLEY. Is there any case on the way up there?

Mr. HANSEN. Yes, there is a series of cases. The State of California has approximately 57 or so cases bunched together that are going through the Federal Court. Either Illinois or Florida has a similar situation of 40-some-odd cases.

Mr. PAISLEY. On the way up.

Mr. HANSEN. They are going through the Federal district court level now. They will ultimately reach the Supreme Court and there are these constitutional problems, one of which is cruel and unusual punishment.

Mr. PAISLEY. At the time the Constitution was adopted England had capital punishment and so did all the Colonies, the 13 Colonies, didn't they?

Mr. HANSEN. That is what I said. We have learned their history. Mr. PAISLEY. They would have a little difficulty with declaring capital punishment unconstitutional.

Mr. HANSEN. No, not necessarily.

Mr. PAISLEY. Cruel and unusual punishment?

Mr. HANSEN. Not necessarily if they limit it just to the act of the killing. They would have problems in trying to distinguish from past cases, but if they apply it to the theory, the manner of waiting, the manner of imposition, the manner of execution, not the killing itself, cruel and unusual, but the long haul wait.

to

Mr. PAISLEY. I have just a couple of other questions.

You told us about this kangaroo court.

Mr. HANSEN. That is documented.

Mr. PAISLEY. You described it in great detail. Did I understand you that some official of the prison sat in on that?

say

Mr. HANSEN. No, all inmates.

Mr. PAISLEY. All inmates.

Mr. HANSEN. When this prison trial came to light, a grand jury was called to investigate the conditions. There were knives, there was dope. There was homosexuality, and lack of segregation.

Mr. PAISLEY. How did you learn about this?
Mr. HANSEN. I defended two of the three.

Mr. PAISLEY. From whom?

Mr. HANSEN. From the witnesses. It is all in the court record. I can document every line of it.

Mr. PAISLEY. Was there ever prosecution for those crimes?

Mr. HANSEN. No.

Mr. PAISLEY. Did you try to prosecute?

Mr. HANSEN. I ended up defending them. I tried to get prosecution in this respect. I said it isn't fair for a prosecutor there were eight inmates involved in this plan. Their whole plan was: involve enough inmates to get these two leaders, the word got out, that they are the ones to fear, and with the prisoners' code of no finking on each other, they didn't think the bulls would find out about it. One of the guys that helped plan it, Billy Randall, was the guy that as a last-minute substitute sent Garcia up in the attic as a lookout. He went down and had his alibi by a guard. He was the one that told on the others. He is out on the streets and he has got a Huntsville record as long as your arm, 10 years in prison, and these other kids started out in this mess and that is how it ends up.

I started to tell you, and I am going to really impose on you, to listen for a minute about this execution in Utah. They take an old office chair, and they set the prisoner down there and they strap his legs to the front legs of the chair. It has arms and they strap his arms and wrists to the arms of the chair. They belt him in around his back. They put a hood over his head. They have a doctor with a stethoscope with a 2-inch diameter white patch.

Mr. PAISLEY. Unless you just want to, you don't need to recite this for my benefit.

Mr. HANSEN. I want it for the record, please.

Mr. PAISLEY. We have already had this type of testimony.

Mr. HANSEN. You haven't had this type. It doesn't exist any place except in Utah.

Mr. PAISLEY. The electric chair?

Mr. HANSEN. This isn't the electric chair. This is a shooting. They strap him in there. They find his heart. They put the patch. They have five guys with rifles, four loaded, one blank. They stand from a distance of maybe 6 or 8 feet, half the distance of this table away. Ready, aim, fire, and they shoot with these high-powered rifles. They have had to reload on occasion. They have shot in ankles on occasion. Then while he is twitching like the chicken with his nerves and the head cut off, the doctor goes in with his stethoscope again in approximately 2 minutes or in excess thereof. He finally says, "dead." The priest or chaplain, whichever religious denominational faith, says, "God have mercy on your soul," and they haul him away. But these bullets go through his body. They have as the backdrop 1 by 4 boards about 4 inches apart with sand in the middle. They take him out between the fences right out in the yard and shoot him and these bullets go through him, the board, the sand, the board, and richochet off like in the cowboy movies. That is what we have going on in the State of Utah. I am sure other types of killing are just as cruel, are just as barbaric, are just as senseless. For hell's sake, let's do something about it. Senator HART. Thank you very much, General.

Mr. HANSEN. Thank you.