Senator HART. As I indicated, we have with us this morning Prof. Thorsten Sellin.

Professor, if you will come up I will summarize, but we will ask that the record contain in full some of the distinguished contributions that you have made in this field.

Professor Sellin is emeritus professor of sociology at the University of Pennsylvania. Since 1929 he has been the editor of the Annals of the American Academy of Political and Social Science.

He has represented our country at international congresses and seminars on prevention of crime and treatment of offenders.

As Professor Radzinowicz reminded us earlier, he has cooperated in the study of the Royal Commission, as well as many other things. Professor, we welcome you.

STATEMENT OF PROF. THORSTEN SELLIN, EMERITUS PROFESSOR OF SOCIOLOGY, UNIVERSITY OF PENNSYLVANIA

Mr. SELLIN. Thank you very much, Senator Hart.

Senator HART. Your statement will be printed in full as though given in full. If you want to expand or summarize, feel free to do so. Mr. SELLIN. Thank you.

I am grateful for your invitation and I will try to be as brief as possible and not read the statement, although I may wish to quote from it here and there.

(The prepared statement follows:)

THE DEATH PENALTY

At present, a threat of being punished by death for some crime or other exists in most American states, as well as in federal law. In eleven jurisdictions (Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, Puerto Rico, the Virgin Islands, West Virginia and Wisconsin) the threat has been completely removed. In four additional states it has been restricted to treason (North Dakota); murder by a prisoner serving a life sentence (Rhode Island); the killing of a peace officer on duty and the murder by a life convict of a guard or fellow inmate or while attempting to escape (New York); or treason, kidnapping for ransom, a second "unrelated" murder by a person previously convicted of murder in the first degree, or the killing by a prisoner of a guard or a peace officer (Vermont).

The movement to abolish the death penalty in the above states has a long history. It should be noted that three of these states-Michigan in 1846, Rhode Island in 1852 and Wisconsin in 1853-were among the first in the world during the 19th century to abolish capital punishment. The movement made no headway, however, until half a century ago and appears to be having its greatest success since the second World War. During the last decade, for instance, seven of the fifteen previously listed jurisdictions have either abolished the death penalty completely or have restricted its use to such a degree that one can predict its disappearance in practice in states like New York or Vermont, barring unforeseen developments.

In the jurisdictions that have retained the death penalty, the number of crimes punishable by death varies greatly, whether one applies a strict legal definition or some generic classification. In practice, however, the penalty in recent decades actually has been executed only for seven crimes. During the period 1930-1967, there were 3859 executions. Most of them-3335-were for murder. In addition, there were 455 executions for rape, 24 for armed robbery, 20 for kidnapping, 11 for burglary, 6 for aggravated assault by prisoners serving life sentences and 8 for the federal crime of espionage. Only 33 persons, including the espionage cases, were executed for federal crimes. This does not include, however, 160 executions by the Army, mostly during the war, for murder, rape and desertion (one case). One very significant development is observed when one examines the statistics

of executions during the thirty-eight past years. In the 1930ies, the annual average number was 166, in the 1940ies 127, and in the 1950ies 71. Since then the annual number has been rapidly declining from 56 in 1960 to 1 and 2 in 1966 and 1967 respectively. So far as the federal jurisdiction is concerned, it is noteworthy that while there were 10, 13, and 9 federal executions in the 1930ies, 1940ies and 1950ies respectively, there has been but one during the present decade-in 1963. In practice, then, the death penalty appears to be reaching the vanishing point in the United States.

Considering these facts it might appear puzzling to find that tremendous resistance is shown in legislative assemblies when proposals to abolish death penalty are introduced. Even in states that have not practiced executions for two or more decades, abolitionists discover that an attack on capital punishment touches a raw nerve of the body politic, mobilizes the defenders of tradition and ends in a debate which displays all the hackneyed arguments which, at least since the debate between Caesar and Cato on what to do with the Catiline conspirators, have remained relatively unchanged throughout the centuries, except for the fact that in recent times there has been available a great deal more empirical data to buttress the arguments of the abolitionists. Some of these data will be utilized in the following pages in which I propose to examine, in particular, the argument most commonly advanced for the retention of the death penalty, namely that this penalty has such unique power that its removal from the penal law in favor of life imprisonment would create a hazard for people generally or for certain specific groups of people, such as the police or the personnel of prisons.

GENERAL DETERRENCE

During the debate in the British House of Commons in 1956, Sir Patrick Spens, a former Chief Justice of India, defended capital punishment saying: “I am absolutely convinced-I know-that fear of violent death is a deterrent, and no statistics, no argument whatever will convince me that it is not." During the same debate Sir Robert Grimston, in commenting on the statement of the Royal Commission on Capital Punishment that “capital punishment has obviously failed as a deterrent" of murder, stated: "We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged."

It would be useless to enter into an argument with the first of these two speakers, whose closed mind would be impervious to proof that would not support his point of view. But Sir Robert's statement, which recurs in all debates about the death penalty, raises an interesting point. Is it, in fact, impossible to know how many people have refrained from committing murder because of the fear of being hanged? If this question is answered in the affirmative the debate on capital punishment would have to seek some other ground than deterrence. Let us, therefore, examine its validity.

If a state has the death penalty for murder, the statement assumes that fear of execution causes an undetermined number of persons to refrain from committing that crime. If this were true, what should happen, when the death penalty for murder is abolished in such a state? Freed from the fear of execution, at least some of those assumed to be goverened by that fear alone would now be added to the number of those who would commit murder anyway and this should increase the murder rate. Conversely, the introduction of the death penalty after a period of abolition should decrease the rate, since now an appeal is made to the controlling power of fear of death. Finally, one would expect that states having the death penalty for murder would have lower murder rates than similar but abolitionist states.

A number of researches have been made that have examined all available data on willful homicides over periods of time and have aimed at demonstrating the truth or falsity of the above assertions. These studies have shown that neither the abolition nor the introduction of the death penalty for murder has any demonstrable effect on the homicide rate. Studies of such rates since 1920 in American states that have abolished the death penalty and contiguous states that have retained it have shown that (a) the rates are the same in both types of states, and that (b) their trends are identical.1 In other words, a public policy

1 See Thorsten Sellin, The Death Penalty. Philadelphia: The American Law Institute, 1959.

of inducing fear of execution as a means of reducing the murder rate of a state has been found to be ineffective.

Evidently, there are other factors, inherent in social life, that determine the size, the fluctuations and the trend of murder rates in a population.

A few specific researches have been made to test the effect of the executions of inhabitants of a city on the rate of homicides in that city in a period following the executions by comparing these rates with those of a period preceding the events, the assumption being that locally such highly publicized executions should have the greatest deterrent effect. The results of these studies have substantiated the conclusion already stated.❜

The belief in the unique deterrent value of the death penalty in protecting the life of citizens is shared by the police, whose views are generally given much credence by the population in the mistaken belief that the police are an authority on most matters concerning crime and criminals. In the United States and Canada, the opposition of police organizations to the abolition of capital punishment has often determined the reaction of legislative assemblies to abolish bills. And yet, studies hitherto made in the United States indicate that police opposition to abolition is based on myth and not on facts.

An extensive research on police homicides during the period of 1920-1954 in six abolition states and eleven contiguous death penalty states showed that the rates of police killed per 100,000 population were identical in both types of states.* An even more persuasive analysis of police homicides during the years 19611963, when 140 policemen were killed in the United States by criminals or suspected criminals, showed that only nine of these policemen were killed in the abolition states, which at that time were six in number. The annual average risk of a policeman being killed was 1.31 per 10,000 policemen in the abolition states and 1.32 in the death penalty states bordering on them.*

The cultural basis of police beliefs in the protective value of the death penalty is obvious from the fact that in capital punishment states the vast majority of the chiefs of police hold this belief, while in the abolition states most police chiefs express a contrary view.

In legislative debates on abolition of capital punishment speakers for the opposition generally support the contentions of police organizations. They also believe that the death penalty should be retained as a means of safe-guarding the lives of the inmates and the staff and employees of prisons to which convicted murderers would be sent if they were not executed. Such legislators apparently believe that a person who has once taken a human life is likely to do so again even in the setting of the prison.

Until recently no study had been made to ascertain the truth of the belief mentioned. Numerous statements by prison administrators did exist to the effect that inmates serving life sentences for murder were generally the most orderly and least troublesome of prisoners, but hard facts were absent. In 1966, I undertook a large survey of prison homicides. It covered all but five, mostly very small, of the 50 states and included the state prisons and reformatories for adults as well as the federal prisons. Data were requested for the calendar year of 1965. During that year, there were 61 homicide victims-8 staff members and 53 inmates in assaults committed by prisoners. Nine inmates were killed by unknown persons, all in jurisdictions having the death penalty. Fifty-two persons were killed by 59 known prisoners. The eight staff members were killed in death penalty states.

Who were these 59 prison killers? Sixteen of them were serving a sentence for murder of the first or second degree, four of them in abolition states, Nineteen were serving terms for robbery. Altogether, 43 (73 per cent) were in prison for an aggressive crime against persons; 16 for property offenses. If we assume that the cases of inmates killed by unknown offenders involved nine perpetrators, 57 of the offenders were prisoners in death penalty states and 11 in abolition states."

2 Robert H. Dann, The Deterrent. Effect of Capital Punishment. Philadelphia: The Committee of Philanthropic Labor of Philadelphia Yearly Meeting of Friends, 1935 (Bul. No. 29); Leonard D. Savitz, "A Study in Capital Punishment," Jour. of Crim. Law, Criminology and Police Sci., 49: 338-41. Nov.-Dec., 1958.

3 Thorsten Sellin, "The Death Penalty and Police Safety." pp. 718-728 of Second Session, Twenty-Second Parliament. 1955. Appendix "F" of the Minutes of Proceedings and Evidence, No. 20, of the Joint Committee of the Senate and House of Commons on Capital . . Punishment Ottawa: Queen's Printer, 1955.

4 Thorsten Sellin (ed.), Capital Punishment. New York: Harper & Row, 1967; pp. 152-153.

5 Thorsten Sellin, "Prison Homicides." Ibid., pp. 154-160.

It is true, then, that murderers serving life sentences sometimes commit a homicide in prison, the victim being usually a fellow-inmate. But what is the remedy? Most of the killings occurred in states with the death penalty and 7 of the 11 offenders in abolition states were serving terms for crimes other than murder. The largest group of killers were robbers. Of course, all these prison homicides could have been prevented if the crimes for which the perpetrators were serving sentences had been capital crimes and the perpetrators executed, but this is idle speculation, for no legislature has contemplated any such radical program. Most states permit courts to make a choice of life imprisonment or death when a defendant has been convicted of a capital crime. No court can foresee which one of the many sentenced to life for murder may commit a homicide in prison, often under circumstances which if the deed had occurred in freedom would have resulted in acquittal on a plea of self-defense or in a conviction for manslaughter. In any case it would seem that the retention of the death penalty in order to prevent prison homicides would offer no solution to the problem.

An additional argument is usually made in favor of the death penalty. It is claimed that even if life sentences are imposed they are never served in full, because such prisoners can ultimately be released on parole and, therefore, may become a threat to the safety of people in communities to which they return.

Those who offer this argument usually are not acquainted with the fact that many lifers die in prison and thus serve their full sentences, that some have to be transferred to mental hospitals for permanent care and that some are given pardons. In the state of of Ohio in 1957, for instance, when one prisoner was executed, 11 who were serving life sentences, some of them for murder, died of natural causes.

As for paroled murderers, evidence indicates that their conduct while on parole, a period which may range from five years to the end of their lives, is remarkably good, compared with the record set by paroled robbers or thieves.

During 1945-1954 a total of 342 male prisoners were paroled in California from first degree murder convictions. By the end of June, 1956, 37 had been declared parole violators (10.8 per cent). Six of these had simply disappeared, 11 had been returned to prison for technical violations, 11 after convictions of misdemeanors, and 9 on new sentences for felonies (2 for robbery, 2 for lewdness, 1 for a narcotics offense, 1 for abortion, 1 for sex perversion, 1 for assault to murder and 1 for second degree murder).

From July 1930 through 1961, 63 prisoners convicted of first-degree murder were paroled in New York; 61 of them had originally been sentenced to death. Their average age at parole was 51 years; 56 had no previous felony convictions. Three of the 63 became delinquent; 2 of them were returned to prison for technical violations and 1 after conviction for burglary.

From 1945 through 1965, a total of 273 first-degree murderers were paroled in Ohio. Fifteen became parole violators, but only two of these were returned to prison after a conviction of a new crime (one for robbery and the other for assault with intent to rob).

There exists no evidence to show that the parole record of murderers is poorer in abolition states than in states that have retained the death penalty.

In conclusion, then, no empirical data exist to show that the threat of death as a consequence of murder has had any beneficial effect on the incidence of that crime in the United States. Whether or not it could have such an effect is an academic question in view of what is actually happening today. A threat of execution could have no effect unless it is carried out. In spite of the often loudly voiced support of the death penalty in legislative halls and on public platforms, executions have nearly disappeared. In recent years prisoners have 'continued to enter prisons in the United States under sentences of death. At present over 440 are sitting on "death row", a figure double that of a decade ago. Yet there were but two executions in 1967. This is a clear sign of the reluctance to carry out the imposed penalty and places an intolerable burden on appellate courts and on the executive authorities entrusted with the power of pardon. Indeed, the whole process of administering justice is bedeviled by the existence of the death penalty. It is increasingly difficult to find persons acceptable as jurors in capital cases, the appellate procedure is becoming protracted, lengthening more and more the time between the date of sentence and the final disposition of the case until often five or even ten or twelve years may elapse, after which an execution would be a mockery of justice.

In its recent report, "The Challenge of Crime in a Free Society," the National Crime Commission appointed by President Johnson two years ago was unanimous in its opinion that if a state imposes death penalties but does not execute them, it should remove capital punishment from its statutes. There are encouraging signs that this will progressively happen in the American states, because the death penalty has become impractical in the light of present-day experience, is outmoded in the light of modern penology, useless as a deterrent, so haphazard is its execution as to be grossly inequitable, and so much like a primitive rite that it should have no place in a modern penal code. The removal of the death penalty from federal law would give a strong impetus to the abolition movement.

Mr. SELLIN. I begin it with a brief history of the abolition of the death penalty in the United States. I want to make a case that the penalty of death has almost disappeared in the United States. Senator HART. Has almost?

Mr. SELLIN. Disappeared. When you sentence a man to imprisonment, the commitment to the institution to serve the sentence is the punishment, not the sentence which the judge imposed, because a sentence not executed is, no punishment. When you sentence a man to death, you simply order that a punishment be inflicted on him, and if it is not executed, then the penalty does not exist for him.

In 1966 there was one execution in the United States, in Oklahoma, and strange to say, that one execution was induced by the offender. He had previously been sentenced to death for murder, had pleaded with the jury and the judge to impose a death sentence. He was given a life sentence, and when he arrived in prison after a while, having tried to convince all authorities and the court the sentence should be changed to a death sentence, because he wanted to die, he killed a cellmate and went to the warden and said, "Now you have to execute me.” This was the one execution in 1966.

There were two executions in 1967, one in Colorado and one in California.

I think I have made my case that the death penalty practically does not exist in the United States. We still sentence persons to death, yes, but we do not execute the punishment.

Therefore it is rather puzzling to find that there is so much resistance to any attempt to abolish the death penalty. People get terrifically excited about any movement in that direction. I have read so many debates on this subject. The arguments remain the same, from ancient times through the present. They are either of a dogmatic character which do not allow for proof or disproof, but only for conversion, or they are of an empirical character, which makes it possible at least to test whether or not the assertions which are made about the effectiveness of the death penalty can be examined.

We have a great deal of empirical evidence with respect to the problem of deterrence which is usually the argument which is brought up when the death penalty is discussed. I am never sure whether or not it is the real argument, I mean the real motive for using that argument. But we live in a scientific age, we like to be rational and like to have facts that will show whether or not a certain thing is true, and we do not like to admit that it really is not the facts that we want but that our emotions are really what is deciding us, we can hide this by claiming that we need facts.

But even facts sometimes are very, very difficult to present. There are some people who just don't accept facts. I mention in my paper