The Case Against Capital Punishment
FITCH, ROBERT E.
The Case Against Capital Punishment Reflections on Hanging. Reviewed by Robert E. Fitch By Arthur Koestler. Dean> pacific School of Reiigitm. MacmiUan. 231 pp. $4.50. author, "The Decline and...
...Calm makes a fourfold indictment of the inadequacies of criminal procedure in the United States: It can be corrupted by race prejudice or hatred...
...This one chapter brings to a focus, better than could any table of statistics, the wretchedness and pathos of the individual of slight intellectual and emotional endowments who, over a long period of years, is finally provoked to an act of murder...
...But we have not yet got away entirely from the tradition of killings by gangsters who operate on a professional basis for pay...
...When Arthur Koestler gives us his brilliantly written Reflections on Hanging, it is a reminder that, with all our alleged progress in civilization, we have not moved far beyond the days of Calvin and the Inquisition...
...The third argument is simply that the death penalty alone is irreversible...
...It is also true, as Koestler fails to note, that we have no data on the cases where the deterrent may have been effective, and therefore no one appeared in court...
...Those who entertain such scruples will be especially challenged by Professor Cahn's Preface for Americans...
...He deals with the old custom of hanging, drawing and quartering for traitors, and explains that in the case of women traitors modesty required that most of the ritual be omitted and the woman be simply burned alive...
...And the final verdict may be influenced by the use of third-degree methods, by intricate technicalities of local procedure, or by the political ambitions of the prosecutor...
...It is distorted by our national propensity to haste and to violence...
...Furthermore, it is by no means clear that execution by gas has anywhere near the number of hazards of unnecessary cruelty that go with hanging...
...This book considers the problem of capital punishment from the historical point of view, in terms of its human and dramatic aspects, and in terms of the legal and ethical issues...
...To be sure, American readers will have some scruples as to just how completely Koestler's arguments may apply to conditions in the United States...
...It was traditional that the heretic should be burned with green faggots, so that the torture of the slow fire would prepare him for the eternal fires to come...
...fust how most readers will respond to this book by Koestler...
...On the historical side, Koestler begins with the period when the death penalty was inflicted for anything from petty theft to treason...
...He objected to burning as unnecessary cruelty...
...A second argument derives from the several known cases where the penalty has been inflicted on the innocent, and is reinforced by the suggestion that there must be other such cases about which we can, of course, know nothing...
...It is colored by the unfair and sensational manner in which many newspapers handle crime news...
...I do not know...
...It may be true that in England murder is a failing of amateurs, and it may even be true of most cases in this country...
...Servetus was burned at the stake...
...But I am at least convinced as to the essential...
...However, so far as we can make inferences from statistics drawn from the practice of many countries besides England which report what happens when the death penalty is abolished, or re-introduced, or abolished again, there are no grounds for believing that this penalty is an effective deterrent...
...These factors relate to the fallibility of witnesses, the disagreements of expert testimony, the problem of coincidence, the dilemma of the jury, the judge's summation of the case, the court of criminal appeal, the handicap of poverty and other matters...
...They will remember that justice for the criminal in this country is neither so swift nor so sure as it is in England, and that part of our problem has to do with those who find it too easy to employ legal loopholes to escape a deserved penalty...
...Whether by accident, or due to the intervention of a just Providence, the faggots in this case were green...
...And he gives us a chapter of "Reflections on the Hanging of a Pig," which explains the ethics of inflicting capital punishment on animals...
...In connection with the same focus on the human interests involved, Koestler gives some careful descriptions of the actual techniques of hanging, electrocution and the use of cyanide pellets, and the nature of the ordeal experienced by the culprit at this point...
...The legal-ethical argument may be summarized in three points: First, the death penalty is not a deterrent...
...There is an Afterword by Sydney Silverman, MP, which traces the legal history of the Abolition Bill in England from its inception to the present...
...author, "The Decline and Fall of Sex*' The ironies of mercy and justice in the use of capital punishment are beautifully exemplified in the burning of Servetus by Calvin's Geneva...
...Calvin was even more of a humanitarian...
...He also treats of the old practice of hanging juvenile delinquents, even under ten years of age, when they were guilty of small misdemeanors...
...In the tenth chapter, there is an analysis of ten factors which may enter into a man's being "Doomed by Mistake...
...The Protestants of Geneva, however, took pride in the fact that they used well-seasoned faggots, and so made a quick bonfire of it...
...And there is a challenging Preface for Americans by Edmond Cahn of the New York University Law School...
...But I may report that he has in this clitic at least one convert...
...Of course, there is a logical dilemma here regarding the accessibility of the evidence...
...Calvin was overruled...
...It was his contention that heretics should be mercifully decapitated...
...I am not impressed by every detail of his presentation...
...It is Koestler's contention—and even his opponents appear to concede this point—that murder is a crime not of the criminal classes but of amateurs...
...It is true and ironical that the only cases that appear in court are these that have not been deterred by the threat of this penalty...
...They will also be aware of the reason why most American policemen carry fire-arms whereas British police do not...
...On the dramatic side of the issue, there is a detailed analysis of "The Case of the Mace-Bearer...
...Professor Cahn's earlier writings on The Sense of Injustice and on The Moral Decision have demonstrated his qualifications to treat of the critical area where law and ethics impinge on one another...
Vol. 40 • September 1957 • No. 36
