Is the death penalty necessary?

Media

Part of Panorama

Title: Is the death penalty necessary?
Creator: Playfair, Giles
Language: English
Year: 1960
Subject: Capital punishment.; Capital punishment sentencing -- Great Britain.; Homicide Act.; Punishment -- Law & legislation.
Rights
Fulltext: Are you joking? Is the Death Penalty Necessary? by Giles Playfair In June of 1955, a blonde London model, named Mrs. Ruth Ellis, was hanged for shooting and killing her faith less lover. The execution caused considerable criticism of British justice even in countries which still retained capital pu nishment for murder, one Paris newspaper remarking editorial ly that it symbolized “a pitiless legal system which, alone in the world, refuses to recognize the human sentiments of life.” As a matter of fact, the hang ing of women murderers in Bri tain had become much more ex ceptional than usual. Although both English and Scottish law made the death sentence man datory for any kind of murder — in other words, left the trial judge with no choice but to im pose it — the Home Secretary had by virtue of the royal pre rogative of mercy, a power of reprieve. Of late years this power had been exercised more and more liberally, with the re sult that a male murderer’s chances of escaping the rope were now better than even and a female murderer’s a good deal better than that. Quite possibly Mrs. Ellis was ill-served by all the clamorous publicity that her case aroused, for this may have decided the then Home Secretary that if he spared her he would appear to be yielding to pressure and to be betraying the principle of ca pital punishment — a principle to which his government was staunchly committed. On the other hand, her execution pro vided so-called abolitionists with an opportunity to launch a new campaign to o u t - law the death penalty for mur Dfcember 1960 17 der, which except for treason was the only remaining capital offense in Britain. The new campaign was in tensively conducted and muster ed very influential support in and out of Parliament. But all it won in the end was a prom ised reduction in the number of possible executions and in the already low number of likely ones. This was brought about by a half-baked piece of gov ernment-sponsored legislation called the Homicide Act, which became law last March and which, while it reaffirmed the necessity of retaining the power to hang, in the interests of law and order, enunciated the bizar re proposition that henceforth only some types of murder (for example, murder by shootings as opposed to murder by any other means) need be considered a sufficient threat to law and or der to be called capital! Such an outcome was for two reasons illogical. In the first place, every other European country, save France and Spain, had long since renounced the death penalty for murder yvithout any consequent undermin ing of public safety. Secondly, the allowed penalty in Britain was clear indication of a declin ing faith on the part of succes sive governments in both the moral rightness of capital pu nishment and its practical use fulness. One must conclude,, there fore, that however close the Bri tish people may be led to aban doning the death penalty in practice, they are, as a whole, peculiarly resistant to abolish ing it in principle. But whatever may be true of Britain in this respect is true of nearly all English-speaking countries, and particularly of America, where devotion to the principle of capital punishment seems more firmly rooted today than it was a couple of genera tions ago. Back in 1917, aboli tionists had excited a nation wide interest in their cause and appeared on the verge of win ning a nation-wide victory. Twelve states had already pass ed abolition acts, and in several other states legislation to out law the death penalty was pend ing and had been promised pas sage. But with America’s entry into the First World War, and the concomitant atmosphere of insecurity, a sudden retreat from abolition began, which has yet to be halted. In those states where legisla tion to outlaw capital punish ment had been introduced, the bills, almost immediately, were either dropped or defeated. Since then six of the twelve for merly abolition states have res tored the death penalty, while under federal law capital of fenses which, numbered four in 1917, now number nine, three 18 Panorama of the additions — peacetime es pionage, dope-peddling to mi nors, and causing death through sabotage of a commercial ve hicle — having been made in the last three years. By con trast with the position in 1917, the abolitionist cause today, so far as the country as a whole is concerned, seems almost dead. Indeed, theoretically, America now makes a wider use of the death penalty than any other civilized nation in the world. Throughout its jurisdiction, state and federal, some twenty different capital offenses remain on the statute books, including such archaic-sounding ones as train-wrecking. Though the ma jority of these cannot be fairly called more than capital in name, executions do in fact take place for other crimes besides homicide and treason. Thus in 1953 the Rosenbergs were exec uted for wartime espionage on behalf of an ally, another couple were executed for kidnaping, and in the South six Negroes and one white man were execut. ed for rape. A year later, a Negro was executed in the South for armed robbery. There have been three comparatively recent executions in California for aggravated assault, and this year there has been an execu tion, again in the South, for burglary. yHE American people do not have to look as far as Eu rope for evidence of the practi cal needlessness of the death pe nalty. That evidence exists, and perhaps even more impressively, within their own borders. A sta tistical comparison has been made over five yearly periods between contiguous abolition states and states that retain ca pital punishment. In these states, where social conditions are undeniably similar, the ho micide rate is about equal and is subject to almost identical fluctuations. For instance, the homicide rate per 100,000 of the population between 1931 and 1935 was 5.0 in the abolition state of Michigan and 6.2 in the retention state of Indiana; between 1936 and 1940 it was 3.6 in Michigan and 4.3 in In diana; and between 1941 and 1946 it was 3.4 in Michigan and 3.2 in Indiana. Moreover, while throughout the country the power to impose the death penalty has been but tressed and widened during the past forty years, the actual ex ercise of that power has, just as in Britain, become steadily less likely. Between 1930 and 1950, the average number of annual executions under civil state and federal authority stood at 143. That number has dropped since to 79, and according to present indications will continue to drop. While the great majority 19 of executions that do take place are for first-degree murder — virtually all of them outside of the South — statistics show that at present the chances against a person convicted of intentional homicide ever entering the death chamber are a hundred to one. Several states which remain obstinately loyal to capital pu nishment in principle have in practice, apparently, ceased to use it at all. There have been no executions in Massachusetts, for example, since 1947. And South Dakota, which, though once an abolition state, went to the trouble of restoring the deatn penalty in 1939 for three offenses — murder, killing in a duel, and harming a kidnaped person — has conducted only one execution since then. Nor, though the pardoning power exists in American juris dictions, as it does in Britain, is this solely or even mainly res ponsible for the dwindling num ber of executions. By contrast with the position in Britain, the imposition of the death sentence in America is now largely left to the discretion either of a judge or a jury, and this discre tion is being less and less used. Only in Vermont and the Dis trict of Columbia is the death penalty for first-degree murder mandatory. For rape, and which accounts for the second largest number of executions, it is man datory only in Louisiana. Un der federal law it is not manda tory for any offense — not even for treason, which is generally conceded to be the most heinous of all crimes and is still punish able by death in every Eu ropean country save Western Germany. This increasingly bashful use of the death penalty makes non sense of the two main argu ments for retaining it: namely, that it is a necessary form of ret ribution — the only adequate means of expressing society’s condemnation of a particular crime—and a necessary deter rent against this same crime. Clearly, if first-degree murder is legally defined and some firstdegree murders are punished by death and others are not, so ciety is using the death penalty to express its condemnation of selected first-degree murderers rather than of first-degree mur der as such. Hence the dividing line between retribution and vengeance, always a thin one, disappears; and an objective ap praisal of such executions as do still take place, alike in Britain and America, strongly suggests that they are mostly vengeful in character. Thus it would be hard to deny, judging from the statistics, that the death penal ty for rape in the southern Am erican states exists essentially as a discriminatory weapon against Negroes. The most flagrant ad mission of this occurred in 1915 20 Panorama As for deterrence, any parent should know the absurdity of threatening a punishment and then not carrying it out. Indeed, by definition, the deterrent ef fectiveness of a penalty 4ePends on the extent to which it is cer tain to be imposed, and the per petrators of capital offenses must be well aware by this time that even if they are apprehend ed the death sentence is far from certain to follow. But this is not the only rea son why capital punishment, if it ever was a truly effective de terrent, is now plainly no longer so. By definition again, the more fearful, the penal ty, the greater its deter rent value must be. But capital punishment is not such a fear ful thing as theoretically it could still be, and as undoub tedly it once was. Gone are the days of preliminary torture, boiling in oil, burning at the stake, burying alive, and so forth. The whole tendency dur ing the past fifty years and more has been to make the death penalty as “humane” as possible. Executions are now held in private rather than in public; in America, though this is not true of Britain, the bodies of executed people are returned to their relatives for burial in consecrated ground. The twen ty-six American states that have substituted electrocution for hanging, and the eight that have substituted lethal gas, have done so in the belief that these are less, not more, fearful ways of dying. And the British have kept hanging as their method of execution only because they have yet to be persuaded that a practicable alternative method exists that would cause the vic tim less suffering or provide more certainty of instantaneous death. T^ie fact is that capital pun ishment belongs historical ly to a penal system based on violence of an unspeakably bru tal kind; and the morality which allowed this system to operate has for some two hund red years been in retreat before the advance of humanitarian and scientific influences. Hence there is no wonder that the death penalty should be falling into disuse. It was already an anachronism during the first half of the nineteenth century when, initially in America and later in Europe, the system of assaulting the bodies of crimi nals was replaced, broadly speaking, by the system of as saulting their minds, through so litary confinement in penitentia ries. Today, no civilized society would permit capital punish ment to be practiced in accord ance with the penal theory that fathered it. Admittedly, it can still be effectively employed, and is unfortunately from time to time in authoritarian coun December i960 21 tries, for preventive purposes — as a means of wholesale politi cal suppression. But otherwise, regardless of whether or not it is morally justifiable, there no longer seems to be any logical point in its retention. One may wonder, then, whether it remains an issue of any real importance. Couldn’t it be safely left to disappear on its own? Orthodox abolitionists would answer no to this question, be cause if and when the annual number of executions falls to one, that, from their point of view, will still be one too many. Further, they could fairly argue that so long as the power to im pose the death penalty exists in principle, the chance and the danger persist that, under excep tional circumstances, it will be wielded in practice. This was shown at the end of the last war when the traditionally abolition ist Dutch, Norwegians, and Danes executed native traitors. But there is another, and per haps more compelling, reason why the issue cannot be disre garded. Though capital punish ment was. a contradiction to the chosen methods of nineteenth century penology, which had re volted against violence, that penology still accepted the ne cessity of exacting retribution from criminals. Present-day pe nology, by contrast, puts its em phasis not on retribution, nor even on deterrence, but on re habilitation. It combats crime by such reformative and essen tially non?punitive means as probation and psychiatric help in and out of prisons. It seeks eventually to replace the old concept of “the punishment to fit the crime” with a quite new notion: “the treatment to fit the criminal.” Clearly, the death pe nalty is wholly inimical to this aim, inasmuch as it serves the purely punitive ends of retribu tion and deterrence. Hence its retention is bound to produce a confusion of purpose in the whole penal picture, and to im pede those reforms which are necessary before a policy fully in accord with modern penolo gical theory can be put into ope ration. Regrettably, organized aboli tionists are apt to make little of this point. They are chiefly con cerned with the moral objection to punishment by killing. They give the impression of being nineteenth-century penal refor mers in the sense that to them abolition is an end in itself, and they are prepared to buy it with promissory notes of alternative punishments which, they claim, would prove no less retributive and no less deterrent. Thus in Massachusetts re cently, after an abnormal youth named Chapin had been sen tenced to die for a horrifying but motiveless murder, aboli 22 Panorama tionist spokesmen made no at tack on the idea of punishing rather than treating this boy whose mind was clearly dis ordered. They urged clemency on the curiously illiberal grounds that life imprisonment would be just as terrible a punishnment for him as death, but would avoid the affront to so cial decency which his execution would entail. And, indeed, from the point of view of the individual, natural life imprisonment as an alterna tive to capital punishment is apt to be little better than the substitution of a slow death for a quick one. In both cases the convicted man’s only way of putting paid to his debt to so ciety is through dying. But while natural life imprisonment is unknown in European aboli tion countries, where the out lawing of the death penalty clear the way for a curative ap proach to the problem of crime prevention, it is the alternative to execution that has been adopted in the American aboli tion states. In 1919, for example, a psy chopathic young hooligan, nam ed Joseph Redenbaugh, who had spent most of his brief life in and out of reformatories, was convicted of first-degree murder in the abolition state of Minne sota and was sentenced to life imprisonment. Prompted by an illusory hope of regaining his li berty, and through exploiting an innate intellectual curiousity, Redenbaugh accomplished a re markable job of self-reform or cure. He grew from an unmoral, undisciplined, semiliterate “tramp kid” into a peaceable, law-abiding, highly educated man. It is years now since both the prison and parole author ities in Minnesota were persuad ed that Redenbaugh, who has become learned in an immen sely varied number of subjects and the master of several trades, had conquered his crimi nal aggressiveness; years since they were persuaded that he would no longer prove a danger to society. Yet Redenbaugh re mains in prison. Short of spe cial legislative action, there ap pears to be little or no chance that he can ever be released. It is not surprising that this man, when he looks back on some thirty-eight years of what now seems wasted effort to equip himself for freedom, be lieves that from the individual’s point of view it is better that the death penalty should be re tained than replaced by natural life imprisonment. At this point, certainly, his punishment would appear to be as vengeful in character as any execution, and to make as much of a mockery of the new penology, which places rehabilitation before re tribution or deterrence. In short, the abolitionists are content. December 1960 23 ^His may go far to explain the olligocal reluctance to suggest life imprisonment as a suitable alternative to the death penalty, they are in effect offering society an alternative form of vengeance, without giv ing society and solid reasons for believing that it will be bet ter off if it accepts it. So long as vengeance is so cially permissible in certain circumstances, the average citizen, who does not happen to share the abolitionist’s emotion al objection to punishment by ropekilling, prefers to stick to the rope or the electric chair or whatever it may be as the most satisfying method of exacting vengeance which the law, in theory at least, allows. An unhappy illustration of this was provided a few years ago by the acts of William Ed ward Cook., On December 29, 1950, Cook began a hitchhike from El Paso, Texas, that turn ed into a homicidal rampage. At the end of the following week he had been in and out of Okla homa, Arkansas, New Mexico, and California, and had fled to Mexico City. He had shot and killed eight people, including a whole family. Murder on such a horrific scale inevitably excites a de mand for vengeance. Cook was in an unusually weak position to escape, or be protected from, the satisfaction of this demand. He was young man of twentytwo from a broken and under privileged home; he had no mo ney, friends, or influence; and he was grossly unbalanced men tally. He was tried, first of all, un der federal law at Oklahoma City. Presumably on the advice of his attorney, he pleaded guil ty; and one may doubt whether he could have supported an in sanity plea (his only possible defense) before a jury. The pro secution had mustered three psychiatrists to say that he wasn’t insane. Their view may have been correct according to the strict legal test, which de fines sanity as the ability to make an intellectual distinction between what is right and wrong (punishable by law). Though this test was originally pro pounded by the law lords of England more than a.hundred years ago, and is entirely out moded by medical knowledge, it remains in force in most Am erican jurisdictions. Nevertheless, the federal judge used his discretionary po wer to circumvent the death pe nalty. He had appointed four independent psychiatrists to ad vise him and, on the basis of their findings, he decided that though in law Cook might be responsible for his actions, in fact this derelict young man was “hopelessly insane.” According 24 Panorama ly, he refused to sentence him to death, as the prosecution urged, and instead sent him to prison for three hundred years. The decision prompted Cook’s own attorney to an almost lyri cal flight of appreciation. “The result proves conclusively,” he said, “that even the vicious, the homeless and the friendless can be dealt with compassionately and justly.” He spoke too soon. The state of California demanded Cook’s extradition, so that he could stand trial for the murder of one of his victims, whom he had killed within the jurisdiction of the California town of El Cen tro. This demand was backed by a bloodthirsty local newspa per and radio campaign to which the El Centro district at torney and sheriff were promi nent contributors. The United States attorney general op posed no objection. Cook was removed from Alcatraz, where he had been sent to serve his fe deral sentence, and was handed over to the California authori ties. By then he had been publicly called “Badman” and “Butcher.” Moreover, Colifornia’s purpose in extraditing him was openly and avowedly to do the job that the federal judge had shrunk from doing. The result of his trial, therefore, could hardly have been other than a foregone conclusion. Under California law there was an automatic ap peal and, one is tempted to sug gest, an equally automatic re jection of it. On December 12, 1952, William Edward Cook was gassed to death at San Quintin. Here was a flagrant example of the kind of legalized ven geance that the existence of the death penalty encourages — and one all the more remark able because it happened in Ca lifornia, which, with its wide use of such rehabilitative techniques as prisons without bars, has the reputation of being among the most penologically advanced jurisdictions in the world. Yet the federal disposition of the case was also an attempt to satisfy the public’s thirst for vengeance, and, looked at ob jectively, showed little of the justice and compassion that Cook’s attorney saw in it. True, the court’s hands may have been tied. But that does not al ter the fact that to punish a “hopelessly insane” man by im prisonment in Alcatraz, toughest of the federal maximum-securi ty institutions, is only in degree less barbarous than to execute him. The interests of society must, of course, be placed before the rights of the individual! and no judge would be doing his duty if he permitted men of Cook’s kind to remain at large. But so ciety’s interests would have December 1960 25 been adequately protected in this case if Cook had been com mitted to a custodial non-punitive institution until he died or was cured. Society’s interests would have teen far better pro tected if he had been committed before and not after he killed eight people. This last suggestion is some thing that could and would have happened under a genuinely cu rative penal system. Though murderers of Cook’s type are not legal madmen, they are often popularly referred to as “mad dogs” — a fact which makes their treatment under the criminal law as fully respon sible people all the more ironic. Murder is seldom the first crime they commit, and a competent diagnostician, given the chance, can usually detect their homici dal tendencies before these erupt. Certainly Cook’s murder ous rampage was predictable in general terms. He had a history of antisocial, psychopathic be havior dating back to his ninth year. At the Missouri interme diate reformatory, which he en tered when he was still in his early teens, he was classified as incorrigible. Consequently, he was transferred for closer custo dy to the state prison, where he was held until, on the expiration of his sentence, he had to be re leased. In other words, though his condition was diagnosed in a rough-and-ready sort of way, no attempt was made co treat it, and no power existed to prevent this obviously sick and danger ous boy from reentering the free world once he had paid his socalled debt to society. But nothing much better can be expected so long as an ar chaic legal test of sanity allows psychopaths and other grossly abnormal people to be held ful ly responsible to the law. The practice of punishing rather than treating these people, who are incapable of helping them selves, does worse than violate the right of the individual: it threatens public safety. For, as Cook’s case illustrates, while punishment has no beneficial ef fect on them, its infliction means that society cannot be permanenlty safeguarded from them unless and until they com mit a crime of such gravity that the legal sentence is life impri sonment or death. The law of criminal responsibility must be reformed if the problem that the abnormal offender repre sents is ever to be solved by curative means; and this is a re form, vital to modern penologi cal principles, that the death penlaty and other purely puni tive symbols are holding back. Yet there are examples to demonstrate how much society would have to gain from it and how little to lose — except the right to vengeance. Some two years before Cook was executed 26 Panorama in California, a number of psy chiatrists and other public-spi rited people had successfully launched an attack on the “right and wrong” test of sanity. Like Cook, Brettinger anti social history dating back to his childhood! like Cook, he had not responded to punishment; and like Cook he was a severe psychopath. Unlike Cook, he pleaded insanity. He was incapable, they said, of controlling his impulses; he had virtually no moral sense. One of these expert witnesses, the late and distinguished Ro bert Lindner, boldly predicted from the stand that if Brettin ger were not treated and con fined, if he were merely sent to prison for a determi nate term, he would even tually do murder. It was this prediction which in all probabi lity decided the jury, after much debate, to accept Brettinger’s innsanity plea. So in stead of being punished again, he was committed to a hospital for treatment over an indefinite period. Today, seven years la ter, he has been released on parole. He is holding down a good job, and shows every indi cation of being a useful mem ber of society. The moral of this story has, unfortunately, not been widely heeded, but it provides, surely one of the most persuasive mes sages for abolitionists to proclaim. Granted a reform in the law of criminal responsibility, murder can be prevented through cure — not every mur der, obviously enough, but a great many of the murders which, in practice, the death pe nalty is retained to punish. ¥ ¥ ¥ Cooking Adage Which reminds us of the newest cook book from deepest Africa, “How to Serve Your Fellow Man!’ December 1960 27