Death for the Death Penalty?

For decades, Western civilization has been edging away from the Biblical in junction of an "eye for an eye." In Britain, the death penalty (hanging) is now close to being abolished. In Europe, it survives only in France (guillotining) and Spain (garroting). Abolition has been slower in the U.S., but with the recent addition of Oregon, Iowa and West Virginia, the number of no-death-penalty states has risen to eleven. Last week the U.S. Bureau of Prisons reported a record low of 15 executions in 1964, compared with a yearly average of 167 in the 1930s.

The drive against the death penalty is gathering new momentum, gaining support from such religious groups as the Methodist Church, the Protestant Episcopal Church, the American Baptist Convention and the United Presbyterian Church in the U.S.A. Ardent in dividual abolitionists have ranged from the late Supreme Court Justice Felix Frankfurter to Jack R. Johnson, tough warden of Chicago's Cook County Jail, who says, "The death penalty isn't punishment -- it's revenge."

The cause is steadily gaining converts among U.S. Governors, such as Tennes see's Frank G. Clement, whose recent plea for abolition ("Thou shalt not kill") lost by only one vote in the state legislature. Hurrying to Death Row, Clement immediately commuted the sentences of five condemned Negroes to 99 years. Abolition lost in Indiana this month only because the last-minute murder of three policemen persuaded the Governor to veto it. Last week it was being discussed by the legislatures in Illinois, Vermont and New York, where an influential bipartisan commission called execution "an act of supreme violence" and argued that New York can punish murder "without resort to barbarism of this kind."

De Facto Abolition. For all the current abolitionist enthusiasm, the death pen alty has in fact been dying for some time. The country's murder rate is 40% less than it was in the 1930s, and more murderers are being committed to men tal institutions. Modern penology has swung from retaliation to rehabilitation, and paroled murderers rarely murder again. Even states empowered to execute are loath to do so. While rejecting abolition, Massachusetts has not executed anyone since 1947. New Hampshire has put no one to death since 1939. According to the most recent Gallup poll, only 45% of Americans now favor capital punishment, compared with 68% in 1953.

Abolitionists claim that the shift in public opinion ironically puts accused murderers in double trouble by creating "hanging juries." By rejecting jurors who oppose execution, says University of Texas Law Professor Walter E. Oberer, prosecutors get jurors "who not only condone capital punishment, but believe in it." Abolitionists also argue that execution is performed capriciously --on only one out of 100 convicted murderers, and then usually on the poor, friendless and uneducated. Some 54% of the 3,885 Americans executed since 1930 have been Negroes, and in the 1950s, for example, Ohio executed 51% of whites and 78% of Negroes found guilty of capital offenses.

Endless Stays. Equally sobering are the legal snarls arising from the mere existence of the death penalty. Conviction for first-degree murder requires proof of premeditation, commonly obtained by confession. But suspects too poor to hire lawyers seldom learn that they have a right to remain silent. The fact that indigents (60% of all criminal defendants) frequently confess out of fear, even though innocent, is among the chief reasons for the court decisions on the right to counsel and the inadmissibility of nonvoluntary confessions that have recently thrown U.S. law enforcers into a tailspin.

The death penalty has "a seriously baneful effect on the administration of criminal justice," said the New York bipartisan commission urging abolition last week. The fact that life is at stake "increases the danger that public sympathy will be aroused for the defendant, regardless of his guilt." Conversely, the possibility of error "has produced the endless protraction of post-conviction remedies developed by the courts in recent years."

As one result, the number of U.S. prisoners lingering on Death Row hit a record high of 315 last year. By using endless stays, such prisoners can fend off execution for an average of two years. In Louisiana, two Negroes have done it for twelve years--beating the record of California's Caryl Chessman (eleven years, ten months). Indeed, California's Governor Edmund Brown now aims to give life sentences to anyone who survives Death Row for seven years.

Deterrence Debate. All this fails to impress defenders of capital punishment. The death penalty, they say, is more than a deterrent, it is a moral heritage of Judeo-Christian culture. Society has a "right to avenge," argued a former prosecutor representing the New York police before the legislature last week. Says J. Edgar Hoover: "The savagely mutilated bodies and mentally ravaged victims of murderers, rapists and other criminal beasts beg for consideration when the evidence is weighed on both sides of the scales of justice." The public seems to agree. The Protestant interdenominational monthly Christian Herald recently asked readers across the country: "Is the death penalty ever morally justifiable?" Of 13,500 replies, 64% said yes.

But equally significant is another question: Does the death penalty really deter crime? In reply, abolitionists point out that the homicide rate in abolitionist states is only about one-third as great as it is in capital-punishment states. Yet even the statistics on capital punishment imply unanswered questions: Alabama has both the death penalty and the country's highest murder rate (10.2 per 100,000 people), while Vermont also has the death penalty and the country's lowest murder rate (.5).

More germane to the deterrence debate is a point noted in the FBI's own "Uniform Crime Reports": 82% of murders stem from brawls in families and between acquaintances; most of them are crimes of passion committed with no thought of the consequences. And if the abolitionists had to sum up their entire case in one fact, it would be that pickpockets in 19th century England avidly plied their trade among the spectators at the hanging of other pickpockets.

Restoration v. Reabolition. On the other hand, no one yet has the slightest evidence suggesting how many people who never commit murder are in fact deterred by the death penalty. The electric chair* thus remains in 23 states and the District of Columbia, the gas chamber in ten states, the noose in six, the firing squad in one (Utah). Indeed, ten abolitionist states have restored the death penalty in the past, usually after some brutal crime. Missouri did so in 1919, for example, after two hoodlums killed two policemen in a gunfight. Conversely, Oregon provided abolitionists with an unexpected argument when it restored the death penalty in 1920. Within a year, for some as yet unexplained reasons, the state's homicide rate almost doubled.

By 1964, Oregon was so sold on abolition once more that the idea won the full support of the state's leading clergymen, newspapers, politicians, law-enforcement officers and finally the voters, who killed the death penalty (gas chamber) by nearly 5 to 3 in a referendum last November. Multnomah County (Portland) District Attorney George Van Hoomissen summed up Oregon's attitude: "The specter of an innocent man unjustly executed is constantly in my mind."

* An accidental byproduct of George Westinghouse's development (1885) of alternating current. The Edison Co., which sold direct current, tried to dramatize A.C.'s dangers by using it to kill stray cats and dogs. Impressed, the New York legislature adapted A.C. for killing humans in a 2,000-volt electric chair at Sing Sing Prison.

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