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against, because I note a number of letters are from persons opposed to the bill, add them to the record. I notice a letter here from Austin McCormack which is typical of the type of letters which would be helpful.

There are letters from attorneys who have had trial experience. There are letters from teachers, who reflect the point of view of their classroom I find disturbingly. There is a high school in Illinois that does not encourage me to think that maybe the youth movement will be always in the direction of abolition, but in any event, I think the record for balance should have that material in it.

To Governor DiSalle and all of you who have attended these hearings, which I think have been productive, I want to again express


The record therefore will remain open for these purposes.

Additionally, we will have further hearings, and I repeat at that time the Attorney General of the United States will respond both to the broad question and specifically with respect to the Senate bill that we are studying.

We are adjourned.

(Whereupon, at 12:45 p.m. the subcommittee adjourned.)





Washington, D.C.

The subcommittee met, pursuant to recess, at 10 a.m., in room 2228, New Senate Office Building, Senator Philip A. Hart, presiding. Present: Senator Hart (presiding).

Also present: Terry Segal, legal counsel, and Betty Stiverson, staff assistant.

Senator HART. The committee will be in order. And I welcome warmly the Attorney General of the United States. All the good things I say about the Attorney General would not persuade those who are a threat to the security and serenity of the country at all, but I think you are a great Attorney General, and I am delighted to hear you this morning.

Mr. Attorney General, you have a brief statement, and if you would be good enough you may read it.


Attorney General CLARK. I will be very happy to do that, Senator Hart.

I appreciate this opportunity to appear before you on a matter that should concern all Americans at this very difficult time in our history. We live in days of turbulence. Violence is commonplace: murders occur nearly every hour.

In the midst of anxiety and fear, complexity and doubt, perhaps our greatest need is reverence for life-mere life: our lives, the lives of others, all life. Life is, as Justice Holmes said, after all an end in itself. A humane and generous concern for every individual, for his safety, his health and his fulfillment, will do more to soothe the savage heart than the fear of State-inflicted death which chiefly serves to remind us how close we remain to the jungle.

"Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind," Shaw advises. When the State itself kills, the mandate "thou shalt not kill" loses the force of the absolute.

Surely the abolition of the death penalty is a major milestone in the long road up from barbarism. There was a time when self-preservation


necessitated its imposition. Later inordinate sacrifices by the innocent would have been required to isolate dangerous persons from the public. Our civilization has no such excuse.

Today more than 70 nations and 13 of our States have generally abolished the death penalty. While most States and the Federal system reserve the ultimate sanction, it has been rarely used in recent years. There were 199 executions in the United States in 1935. There was only one in 1966; two in 1967. Only one person has been executed under any of the 29 Federal statutes authorizing death in the past 10 years. He can be the last.

Our history shows the death penalty has been unjustly imposed, innocents have been killed by the State, effective rehabilitation has been impaired, judicial administration has suffred, crime has not been deterred. Society pays a heavy price for the penalty of death it imposes.

Our emotions may cry vengeance in the wake of a horrible crime. But reason and experience tell us that killing the criminal will not undo the crime, prevent other crimes, or bring justice to the victim, the criminal, or society. Executions cheapen life. We must cherish life.

Extensive studies show that the death penalty does not deter crime. A comprehensive study by Prof. Thorsten Sellin concludes, "it has failed as a deterrent." A United Nations report finds from all available information that abolition of the death penalty has no effect on murder rates. With, or without, they are much the same. Why should we expect a deterrent value? Most capital crimes are committed on impulse in a moment of passion without thought of gain or loss. No punishment deters unpremeditated crime. Premeditated crime is committed by people who generally believe they will not be caught, no matter what the penalty. The best deterrent is swift apprehension, prosecution, and conviction. The need is to build better law enforcement to professionalize police, to bring science and technology to criminal justice. The death penalty is considered by some to be an incentive for mentally unstable persons to commit capital crime.

The death penalty's impact on the administration of justice has been malign. Mr. Justice Frankfurter strongly opposed it for this reason. "When life is at hazard in a trial," he said, "it sensationalizes the whole thing almost unwittingly." He regarded as "very bad" the effect on juries, the bar, the public, and the judiciary. President Johnson's Crime Commission found that the sensationalism "destroys the factfinding process." In a capital case, realization of the consequences of error permeates the entire proceedings. A jury might acquit because of its fear of the death penalty rather than the weight of the evidence. Mr. Justice Jackson observed that appellate courts in capital cases "are tempted to strain the evidence and even, in close cases, the law, in order to give a doubtfully condemned man another chance.'

Fear of mistake produces excruciating delays in executions. Of the 435 men now on death row, who range in age from 16 to 68, half have been waiting death more than 29 months since they were sentenced. Such delays add immeasurably to the inhumanity of capital punishment. Combined with the infrequency of actual imposition, delay eliminates a deterrent effect the penalty might otherwise be thought to have. Moreover, as the American Bar Foundation found in a 1961

study, it weakens public confidence in the law. The President's Crime Commission noted:

The spectacle of men living on death row for years while their lawyers pursue appellate and collateral remedies tarnishes our image of humane and expeditious justice.

The death penalty is irrevocable. For this reason, LaFayette vowed to oppose capital punishment until "the infallibility of human judgment" was demonstrated to him. Innocent persons have been executed. Mental defectives and incompetents have been executed. A judicial determination that a person is legally responsible for his act is not yet precise.

A small and capricious selection of offenders have been put to death. Most persons convicted of the same crimes have been imprisoned only. Experienced wardens know many prisoners serving life or less whose crimes were equally, or more atrocious, than those of the men on death


Death has been visited in a discriminatory fashion. Clarence Darrow observed that, "from the beginning, a procession of the poor, the weak, the unfit, have gone through our jails and prisons to their deaths. They have been the victims." It is the poor, the weak, the ignorant, the hated who are executed. Racial discrimination occurs in the administration of capital punishment. Since we began keeping records in 1930, there have been 2,066 Negroes and 1,751 white persons put to death, although Negroes made up only one-eighth of our population. Of the 455 men executed for rape, 405 were during all of these years Negroes.

As a people, we are committed to the rule of law. We obey the law, not because we are forced to or fear not to, but because we want to. The law, therefore, must be just. It must offer hope to all of our people. When it suggests vengeance or inhumanity, it loses the respect that is necessary if a free people are to fix it in their hearts.

Modern penology offers effective methods of protecting society. We are at last beginning to realize what can be accomplished through rehabilitation, achieved in confinement and in limited custody or supervision in open society. Community treatment centers, halfway houses, and work-release programs are evidence of the thrust toward community programs. Their potential is immense. They are the future of corrections. It is a sad commentary on how much we care that this wealthy Nation spent 95 percent of all funds for corrections on pure custody, the remaining 5 percent on education, therapy, and other rehabilitation techniques-while still killing those who offend us the most.

If an offender cannot adapt to community programs, he need not be a burden on society. Through employment in industries within the prison he can be productive. If he is unable or unwilling to work, he can be treated humanely, allowed to live, and society can simultaneously be fully protected. We do not need to kill from fear.

Murderers, the most likely candidates for execution, generally make well-behaved prisoners. There is nothing to indicate that the death penalty is needed to protect prison personnel from murderous assaults by life termers. The last two heads of the Bureau of Prisons have opposed the death penalty. One study covered 121 assaults with intent

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to kill in the prisons of 27 States during the 1940's found only 10 were committed by prisoners serving life for murder.

The death penalty is inconsistent with the purposes of modern penology. It is a costly substitute for the effort and money needed to develop correctional knowledge and skills.

Our difficult days call for rare courage: the willingness to disenthral ourselves, to think anew and to act anew. There is no justification for the death penalty. It cheapens life. Its injustices and inhumanity raise basic questions about our institutions and purpose as a people. Why must we kill? What do we fear? What do we accomplish besides our own embitterment? Why cannot we preserve life and in so doing create in the hearts of our people a love for mankind that will finally still violence?

The death penalty should be abolished.

Senator HART. Mr. Attorney General, I've heard many eloquent pleas to the conscience of America and this Congress to abolish the death penalty. Others have, too. And, I suspect that they would agree with me that there has never been a more reasoned and yet moving statement, brief though it is, than the one you have just made to us. Indeed it is so eloquent that I am almost ashamed now to get into what seems to be nit-picking kind of comment and questions.

But for the reader of the record and for those interested here in the room, we understand that the bill before us would reach only the Federal Government and would eliminate from Federal statutes those instances where execution for a particular crime is permitted. Your statement is directed to and in support of that bill, S. 1760, is that not correct?

Attorney General CLARK. That is correct.

Senator HART. I note that there is a rather long history of Federal criminal violations which authorize the death penalty. Let me cite one or two which I think most people would agree seem completely unrelated to a crime of such character as to even suggest that a death penalty would be in order, and then let me go to the other end of the line and indicate one or two where, for reasons of history or tradition or prejudice, many people argue that you and I are wrong in this position. The Federal statute makes the sale of heroin to juveniles a crime and authorizes as a penalty execution of the person found to be guilty of that crime. Now, is there any experience in the Department of Justice of which you are aware that would explain why Congress when it enacted the law to prohibit the sale of heroin to juveniles should have even thought about making capital punishment a sanction.

Attorney General CLARK. I am not familiar with the particular history. I would assume that at the time of the consideration of that statute there was very grave concern about the use of heroin and particularly about the sale of heroin to minors. That is a particularly vicious thing to do. It can destroy a young life in the very real sense. Our history through the years would indicate, however, that about 86 percent of all people executed by our States and Federal Government since 1930 were executed for the crime of murder, about 12 percent for rape, and less than 2 percent for all other crimes combined. This indicates quite clearly that this extreme sanction has not been used to any appreciable degree in the narcotics field.

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