The Death Sentence:
HOOK, SIDNEY
By Sidney Hook The Death Sentence Is there anything new that can be said for or against capital punishment? Anyone familiar with the subject knows that unless extraneous issues are introduced...
...Even if one accepted the retributive theory or believed in the desirability of meeting the community need of justice, it doesn't in the least follow that this justifies capital punishment...
...Although Darrow passionately asserted that no one knows what justice is and that no one can measure it, he nonetheless was passionately convinced that capital punishment was unjust...
...The experience of countries and states which have abolished capital punishment shows that there has been no perceptible increase of murders after abolition—although it would be illegitimate to infer from this that the fear of capital punishment never deterred anybody...
...But I think he would admit that sound law is sounder still if in addition to being enforceable it is also just...
...Certain distinctions are in order here...
...Eichmann does not have to be executed...
...The fact that "the state with the very lowest murder rate is Maine, which abolished capital punishment in 1870," may be explained by the hypothesis that fishermen, like fish, tend to be cold-blooded, or by some less fanciful hypothesis...
...If capital punishment actually were a deterrent to murder, and there existed no other more effective deterrent, and none as effective but more humane, a case could be made for it...
...Such views lie at the basis of some forms of the retributive theory...
...Adolf Eichmann, Joseph Stalin and Use Koch are introduced and flaunted before the audience to inflame their feelings...
...A defendant convicted of murder and sentenced to life should be permitted to choose the death sentence instead...
...Although this opinion requires substantiation, too, it carries the weight which we normally extend to pronouncements by individuals who report on their life experience...
...But can justice ever really be posthumous to the victim...
...The weight of this argument against capital punishment is all the stronger if community need and feeling are taken as the prime criteria of what is just or fitting...
...Most people who favor its retention helieve that it does...
...If we wish to keep alive the memory of political infamy, if we wish to use it as a political lesson to prevent its recurrence, it may be educationally far more effective to keep men like Eichmann in existence...
...What about heinous political offenses...
...But not all or most crimes are of this character...
...He argued against capital punishment on the ground that the murderer was always a victim of heredity and environment—and therefore it was unjust to execute him...
...But any sober examination of the facts will show that this has never been established...
...Unless such considerations are present, I do not see on what reasonable ground the request can be denied, particularly by those who believe in capital punishment...
...just as important, the number of crimes punishable by death has been sharply reduced in all countries...
...Not so long ago a defendant sentenced to life imprisonment made this request and was rebuked by the judge for his impertinence...
...If no one can help doing what he does, if no one is responsible for his actions, then surely this holds just as much for those who advocate and administer capital punishment as for the criminal...
...But while the progress has been encouraging, it still seems to me that greater clarity on the issues involved is desirable: Much of the continuing polemic still suffers from one or the other of the twin evils of vindictiveness and sentimentality...
...Rarely has evidence, even when it is beyond reasonable doubt, the same finality about its probative force as the awful finality of death...
...But why is it assumed that capital punishment is, in these cases, the severest and most just of sentences...
...After all, we cannot kill Eichmann six million times or Stalin 12 million times fa conservative estimate of the number of people who died by their order...
...I can see no valid grounds for-denying such a request out of hand...
...For example, during the last 150 years the death penalty for criminal offenses has been abolished, or remains unenforced, in many countries...
...Nor am I impressed with the argument against capital punishment on the ground of its inhumanity...
...There are crimes in this world which are, like acts of nature, beyond the power of men to anticipate or control...
...My second class of exceptions consists of those who having been sentenced once to prison for premeditated murder, murder again...
...In either case they beg the question —in the first case, the question of justice, and in the second, the question of deterrence...
...But the argument is absurd...
...The question of universal determinism is irrelevant...
...Once you can imagine them as infants, however, it is hard to believe that they were already monsters in their cradles...
...Among his many works are Heresy, Yes—Conspiracy, No (1953), Common Sense and the Fifth Amendment (1957) and Political Potver and Personal Freedom (1959...
...Very few of us would be prepared to accept this...
...When a verdict of guilty necessarily entails a death sentence, the jury may not feel the sentence warranted and may bring in a verdict of not guilty even when some punishment seems to be legally and morally justified...
...the next best is one which punishes crime in such a way as to prevent it from happening again...
...If it could be shown that the inhumanity of murder can be decreased in no other way than by the inhumanity of capital punishment acting as a deterrent, this would be a valid argument for such punishment...
...His articles appear in many publications, including Partisan Review, Commentary and The New York Times Magazine...
...Sentimentality, together with a great deal of confusion about determinism, is found in Clarence Darrow's speeches and writings on the subject...
...Every confirmed criminal was once an amateur...
...So long as human beings are responsible and educable, they will respond to praise and blame and punishment...
...But if Hitler had been taken alive, his death would have been required as a matter of political necessity, to prevent him from becoming a living symbol or rallying cry of Nazi die-hards and irreconcilables...
...Justice, of course, requires severe punishment...
...Does capital punishment serve as the most effective deterrent we have against murder...
...Other forms of punishment may be retributive, too...
...I have stressed the hypothetical character of these arguments because it makes apparent how crucially the wisdom of our policy depends upon the alleged facts...
...That is why we are under the moral obligation to be intelligent about crime and punishment...
...This is contested by those who speak of the necessity for capital punishment as an expression of the "community need of justice," or as the fulfillment of "an instinctive urge to punish injustice...
...The opinion of many jurists and law enforcement officers from Cesare Beccaria (the 18th century Italian criminologist) to the present is that swift and certain punishment of some degree of severity is a more effective deterrent of murder than the punishment of maximum severity when it is slow and uncertain...
...Community need and feeling are notoriously fickle...
...The theory has been defended by secular saints like G. E. Moore and Immanuel Kant, whose dispassionate interest in justice cannot reasonably be challenged...
...Otherwise it is unenforceable and brings the whole system of law into disrepute...
...However, since I am not a fanatic or absolutist, I do not wish to go on record as being categorically opposed to the death sentence in all circumstances...
...I suppose that what one means by community need or feeling and the necessity of regarding it, is that not only must justice be done, it must be seen to be done...
...This is its incorrigibility...
...And in the absence of convincing evidence that capital punishment is a more effective and/or humane form of punishment for murder than any other punishment, there remains no other reasonable ground for retaining it...
...Those who wish to retain capital punishment on the ground that it fulfills a community need or feeling must believe either that community feeling per se is always justified, or that to disregard it in any particular situation is inexpedient because of the consequences, viz., increase in murder...
...The relevant question is: What objective evidence exists which would justify the conclusion that if Maine had not abolished capital punishment, its death rate would have been higher...
...I should like to recognize two exceptions...
...How can any equation be drawn between the punishment of one man and the sufferings of his numerous victims...
...For a mandatory death sentence attempts to determine in advance what the community need and feeling will be, and closes the door to fresh inquiry about the justice as well as the deterrent consequences of any proposed punishment...
...The crucifiers and the crucified, the lynch mob and its prey are equally moved by causes beyond their control and the relevant differences between them is therewith ignored...
...Even if we are all victims of our heredity and environment, it is still possible to alter the environment by meting out capital punishment to deter crimes of murder...
...The denunciation of capital punishment as unjust, therefore, would be senseless...
...Our charity for all human beings must not deprive us of our common sense...
...So is murder...
...If the evidence shows that the prisoner is so psychologically constituted that, without being insane, the fact that he can kill again with impunity may lead to further murderous behavior, the court should have the discretionary power to pass the death sentence if the criminal is found guilty of a second murder...
...It may sometimes be denied, particularly if a way can be found to make the defendant labor for the benefit of the dependents of his victim as is done in some European countries...
...If he has been executed in the meantime, we can only do him "posthumous justice...
...This is what Justice Holmes meant when he wrote in The Common Law that "The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong...
...Once they argue that life imprisonment is either a more effective deterrent or more justly punitive, they have abandoned their position...
...By the same token, it may be necessary to execute a politically monstrous figure to prevent him from becoming the object of allegiance of a restoration movement...
...It is hard to imagine it but even Hitler and Stalin were once infants...
...Our judgment of a convicted man's guilt may change...
...A requirement of good law is that it must be consonant with the feeling of the community, something which is sometimes called "the living law...
...Few people think of the dead...
...Sidney Hook, a regular contributor to The New Leader, is chairman of the Graduate Philosophy Department at New York University and frequently writes on philosophical, educational and political affairs...
...He is more useful alive if we wish to keep before mankind the enormity of his offense...
...I conclude, therefore, that no valid case has so far been made for the retention of capital punishment, that the argument from deterrence is inconclusive and inconsistent (in the sense that we do not do other things to reinforce its deterrent effect if we believe it has such an effect), and that the argument from community feeling is invalid...
...From the standpoint of those who base the argument for retention of capital punishment on the necessity of satisfying community needs there could be no justification whatsoever for any mandatory death sentence...
...It seems plausible, but not everything which is plausible or intuitively credible is true...
...Intelligence should teach us that the best educational and penological system is the one which prevents crimes rather than punishes them...
...One thing is incontestable...
...It should be clear that if Darrow's argument were valid, it would be an argument not only against capital punishment but against all punishment...
...The existence of confirmed criminals testifies to the defects of our education—where they can be reformed—and of our penology—where they cannot...
...Usually when arguments fail to sustain the demand for capital punishment in ordinary murder cases, the names of Adolf Hitler...
...Even when the death sentence is not mandatory, there is an argument, not decisive but still significant, against any death sentence...
...It has been alleged that the retributive theory is nothing more than a desire for revenge, but it is a great and arrogant error to assume that all who hold it are vindictive...
...Nor should our charity be less for the future or potential victims of the murderer than for the murderer himself...
...Meeting community feeling is a necessary condition for good law, but not a sufficient condition for good law...
...Anyone familiar with the subject knows that unless extraneous issues are introduced a large measure of agreement about it can be, and has been, won...
...Back of every murder and back of every human act are sufficient causes that move the human machine beyond their control...
...Where matters of ordinary crime are concerned these political considerations are irrelevant...
...In these particular cases we have evidence that imprisonment is not a sufficient deterrent for the individual in question...
...Of course it is inhumane...
...The answer is: No evidence exists...
...Darr?w was an attractive and likeable human being but a very confused thinker...
...Our moral obligation as citizens is to build a community feeling and demand which is right rather than wrong...
Vol. 44 • April 1961 • No. 14
