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Senator HART. Well, then, let me get to the other end, to an area where as you say the application of capital punishment generally is found, and where at the moment there is a very high emotional level in this country. The Federal statute that makes it a crime to assassinate a President of the United States authorizes the execution of the one found guilty of that crime. Do you have any-you indicated in your statement that you would abolish capital punishment without exception. You would retain it for no crime. I invite your attention specifically to the Federal statute which makes it a crime to assassinate a President of this country and ask if you have any doubt that the elimination of capital punishment as a sanction would weaken the protections available to society and the protection of the life of the President. Attorney General CLARK. It took this country a long time to make it an offense against the United States to assassinate or attempt to assassinate its President. I testified in favor of the law that you cite. At that time there were a number of comparable and lesser crimes in the Federal statutes that called for the imposition of the death penalty. In urging the enactment of the statute making it a crime against the United States to assassinate the President of the United States, we felt it was wise in the interest of uniformity to include the ultimate sanction of the death penalty. However, we feel, as I have testified, that the death penalty should be completely abolished in Federal law, and I have no doubt that it should be abolished as well in this new law which has been on the books scarcely 3 years.
Senator HART. The committee had, as you indicated, testimony from the two most recent heads of the Federal Bureau of Prisons, and they spoke of another crime which even among those who figure generally that capital punishment should be abolished have some reservations. A lot of people feel that in order to protect prison guards, it is essential that capital punishment be made available in the event an inmate already under life sentence attacks and kills a prison guard. Both Mr. Bennett and I know Warden Duffy spoke to this subcommittee and said there was no basis for it, no need for it, and urged the across-theboard abolition of capital punishment. You make a reference to this particular crime in your prepared statement. I do not ask you to repeat your prepared comment on it, but I do want by my question expressly to raise it, because I find from some of us who are interested in the abolition of capital punishment as wrong, frequently, they reserve as an exception the need for capital punishment in these cases, which, as they say, bear on prison discipline. You have no doubt that the retention of capital punishment for this purpose is not needed, is that correct?
Attorney General CLARK. I have none whatsoever. I think our experence in penology, our experience in State and Federal institutions shows that this sanction is not necessary to control the prison population. Certainly the effectiveness of our techniques of control and protection must depend on more effective than a mere sanction that those who violate them will be punished by death or any other penalty. The agreement of such eminent penologists, as Jim Bennett and Myrl Alexander, who span the better part of this century in their experience and leadership of the Federal Bureau of Prisons, speaks volumes. I have visited many Federal prisons and talked with wardens and offi
cers there and I have never had them express a concern about this to me. I do not believe they feel it.
Senator HART. You make a comment here that reminds me of the testimony of Governor DiSalle of Ohio. Ohio had capital punishment. He described the agony which was his as Governor in reviewing applications of the men on death row. He later wrote a book that describes very vividly the burden a Governor carries in this area. He made the point, and I think you make it here, too, that he visited scores of men in the death row in Ohio, and he said there was a common denominator among them all: generally they were friendless and always they were poor. You make the same point in different fashion. Just to underscore it, because really the purpose of your testimony today in these hearings is to give Americans an opportunity to think about this problem, to hear from you, and in earlier hearings from others of the reasons that are assigned in support of the proposal we eliminate it, let me ask this question. To your knowledge, has capital punishment ever been visited upon, have we ever executed a felon who by anybody's standards would be labeled rich?
Attorney General CLARK. I do not recall the case, if there has been one. On the other hand, it seems clear that nearly all of the people who are executed are poor. Most are not well educated. They are ignorant people. For those who believe in equal justice under the law, we have to be deeply concerned about this, as we have to be deeply concerned about the fact that such a greatly disproportionate number have been Negroes. The figures in this area must cause us real concern. Why is it that this ultimate sanction is applied so much more frequently to the poor, to the ignorant, to the weak, and to the minority? And as a people, do we really believe that the wealthy, the educated, and the advantaged are ever likely to suffer the death penalty whatever their crime? Our history would indicate it does not happen.
Senator HART. Well, I would only hope, Mr. Attorney General, that a good many Americans, if they have not heard you on television and radio, will read what you have just said and think about it. There is one last point that you make here that I would like to underscore. And this, also, the people of this country should think about, too. You tell us that 90 percent of all the money that this country spends for correction is spent on custody, building a building and putting on a heavy door and turning the key, 95 percent of all the money we spend for correction is spent on custody. And we spend five cents of every dollar on the other rehabilitation techniques. You make the point that that balance is out of proportion, has no relationship to the benefit that could be obtained from the money. Would you comment just in a little more detail on that aspect of the problem?
Attorney General CLARK. This is an area of great concern to me in crime control. We have an immense amount of crime in this country, and much of it can be controlled. We believe that four out of five of all serious crimes committed in the United States are committed by people with a previous conviction of a crime, usually a misdemeanor, usually committed at a young age. If we really cared, if we really applied our knowledge and our resources, we know from present methods that have been tested, that we could return at least half of these people to decent, law-abiding, constructive lives. And if that is 80 percent of
all crime in this country we can cut it in half, we have made an immense difference. But we do not care enough to do anything about it. We spend 95 cents of every dollar on iron bars and stone walls and gray uniforms and wardens and keys, and food necessary to keep prisoners alive. We spend only about $1.1 billion a year in our Federal. State, and local jurisdictions for all of our correctional activities. If we would just double that and spend the increase in rehabilitation, in vocational training, in education, in therapy, in careful community supervision where we can safely work people back into a normal, decent life, we would do more to reduce crime, to improve public safety than any other thing that I know that we could do.
Now, we have got to work with our kids and we have got to work with them before they fall into patterns of delinquency and before they are identified as criminals and before they have been convicted. We could also do so much with those who have already fallen into the cycle of recurring criminal conduct. And it is urgent that we do so, because all through history most people who have offended government and been in prison have returned to open society. And if, when they return, they retain the capability and the will to commit crime, there will be no safety. It is our burden, it is our duty as a government and as citizens to do all that can be done and to do what we know can be done to reduce crime. It is an urgent piece of business for this country. The death penalty is inconsistent with that general purpose and tends to undermine and impair our opportunity to realize it.
Senator HART. Well, I repeat again, Mr. Attorney General, I wish that this visit this morning is one that you could make with everybody in this country, that each American would have an opportunity to listen, to hear your point of view, because there is no need to kid ourselves. There are those who say to me, for example, you put this bill in at a crazy time. Have you not sense enough to know that the crime rate in this country is increasing dramatically? Why talk about abolishing capital punishment? If it is a good idea at all, this is the worst time of all to suggest it.
As I look back on the history of congressional concern about capital punishment, it seems that no time is a good time to suggest it. And if the idea is sound, it is sound in good days and bad. But do you as the chief law enforcement official of this country feel that discussing the abolition of capital punishment weakens law enforcement, your own efforts. Is there any relationship between the crime rate and the proper time to suggest the abolition of capital punishment?
Attorney General CLARK. I think that in the long run the abolition of the death penalty strengthens law enforcement, because you cannot police people by fear. The time to do what is right is always now. The abolition of the death penalty is important. It is never easy to do an important thing. If it were, it would be done before it became important. It takes more courage to face this issue now, but if we address ourselves to it, if we act with candor and without hypocricy and recognize the fact that we rarely impose the penalty with which we threaten people anyway, we will act now, and it will be beneficial to the public safety.
Senator HART. Well, Mr. Attorney General, I wish I could speak as eloquently my appreciation for your testimony as you have presented your point.
Courage is the correct adjective, among others, to use to describe your testimony, indeed your whole career as the Attorney General of the United States. And you make an appeal through this committee this morning to reason. I hope that there will develop an understanding across the country which will support the appeal that you voice. I hope everybody that has a concern that we conduct ourselves as a people that can make a legitimate claim to being a civilized people, I hope that your words will have very broad reading. I know that you have lived through a rather hurly-burly period as Atttorney General, and notwithstanding the sometimes emotional currents that have flooded the country, you have come up to this Hill and testified in support of a good many things which, if you had tested their popularity, you would not have shown up. And I suspect that in the long run, to use your expression, there will be no position that you have taken nor which the administration, President Johnson, supported which will get higher credit in history for courage and reason than support of the obolition of the death penalty. We are very grateful to you.
Attorney General CLARK. Thank you, Senator.
Senator HART. Thank you. I know you have other chores.
Senator HART. The next witness is the director of the Washington office of the American Civil Liberties Union, Lawrence Speiser.
Mr. Speiser also is found on the Hill often, rearely testifying for anything that is very popular. And thank God for the American Civil Liberties Union is all I have to say.
Mr. SPEISER. Thank you, Mr. Chairman.
STATEMENT OF HON. LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION
Mr. SPEISER. Thank you. It is good to be here, although I cannot think of a more difficult act to follow than the Attorney General.
I think that the compassion, the intelligence, the courage, the pereception with which he discussed this subject set a standard for congressional hearings that I think will be extremely difficult to match at any future time.
Senator HART. I agree.
Mr. SPEISER. However, I did come to talk about capital punishment and the reason that the American Civil Liberties Union opposes it. My testimony, I think, may even sound coldly legalistic compared to the statement the Attorney General made so persuasively, but we do oppose it on three constitutional grounds. We believe that capital punishment is a denial of equal protection of the laws, that due processes are frequently denied by the existence of the death penalty, and that the death penalty itself is cruel and unusual punishment. The first of these grounds, denial of equal protection, is evident from the most cursory examination of the death penalty statistics. The death penalty is the special privilege of the poor, the friendless, and the Negro.
Warden Clinton T. Duffy has testified before this body that he has never known of a person of means to have suffered the death penalty.
By any statistical reckoning, the poor are the victims of the death penalty. In Pennsylvania, to pick an example at random, those who cannot afford their own legal counsel have been executed in the ratio of 4 to 1, compared with those who can afford private counsel.
The statistics about Negro executions are even more compelling. Since 1930, 53.7 percent of those executed have been Negroes, who represent 10 percent of our population. In Ohio, in 1 year 1958-59, 78 percent of the Negroes convicted of murder were executed, while only 51 percent of the whites convicted received the ultimate penalty. Enghteen States impose the death penalty for rape. In a 14-year period, 444 persons were executed in these States for rape, of this total, 399 were Negro and 2 were Indian. No white man has ever been executed for raping a Negro woman. Six States have executed only Negro defendants for rape.
The statistics are the same, rolling on with monotonous regularity bringing home their lession to our minority populations.
The second ground-denial of due process-permeates the conduct of capital cases. Defendants are frequently coerced into pleading guilty and waiving jury trials because of the threat that they will be executed if they do not. Prosecutors commonly press for a capital charge in order to get a conviction-minded jury, reducing the charge only when they are assured a jury in favor of capital punishment and thus more likely to be harsh in sentencing. And, of course, the ultimate denial of due process is the cutting short of the postconviction appeal process by the execution of the defendant. There is no way to rectify error once that has happened.
Finally, the concept that capital punishment is cruel and unusual punishment has been proven from many points of view. Our prison chaplains, correctional officials, and psychologists have eloquently described the mental torture of the victim awaiting death for months, sometimes for years. They have clinically described the aberrations, the withdrawal from life, the regression into infantilism that frequently accompanies the stay on death row, the prisoner suspened between false hopes and black despair.
This body has heard a graphic account of the physical torture of the execution itself which turns its victims into a writhing mass of pain. But more than this, capital punishment takes a cruel toll of the collective conscience of all Americans. Having been taught to reverence life, we are forced to be collaborators in official killings. By themselves, these three points loom large with any thoughtful American. What makes them decisive is that there is no counterbalance of social utility or wisdom to bolster the position in favor of retaining the death penalty. The chief argument of death penalty proponents is that it deters crime. But there is not a scintilla of evidence to support it. Every single study done proves that the death penalty does not have the slightest effect on lowering the crime rate. In fact, the violence of the death penalty seems to march hand in hand with the violence of murder. Thus, Georgia, which has executed more prisoners than any other State also has the highest murder rate.
Death penalty advocates state their position on deterrence as follows: "The death penalty is invoked less and less, and the number of murders is increasing every year. The increase in murders is the direct