CAPITAL PUNISHMENT ON THE WAY OUT
Berman, Daniel M.
Capital Punishment Is on the Way Out ......................................... by DANIEL M. BERMAN Several states, notably California as a consequence of the celebrated Chessman case, have...
...This seemingly common sense theory, however, has broken down in the light of experience...
...Rhode Island abolished it under similar circumstances in 1852...
...Michigan and Wisconsin fare better than the East North Central states generally...
...Perhaps the explanation is simply that fear of punishment will often dissuade people from committing minor crimes for which the motive may be trivial, but not from major crimes, for which the motive is often overwhelming...
...The death penalty as a weapon against major offenses seems good common sense: the greater the crime, the greater the threat required to deter it...
...Surely we are guilty of the epitome of inconsistency in retaining the death penalty because of its deterrent threat while searching for swifter and more painless methods of administering it...
...Neither can it stay the hand of the man who kills in a wild fit of rage...
...None could afford a good lawyer...
...and Minnesota and North Dakota are well below the average for the West North Central states...
...As a consequence, there are at present on the books 24 offenses which in theory could be punished by death but which in practice never have been— including dueling, teaching a woman how to perform an abortion, and homicide while committing criminal syndicalism...
...The decrease has been sharp...
...But the class implications of capital punishment are something of a peripheral issue...
...As the number of executions falls, the murder rate might be expected to increase, if the deterrent theory is valid...
...by 1956 and 1957, the number had fallen to 65, and in 1959 to 49...
...The use of capital punishment as an instrument of race hatred is only part of a larger problem...
...In 1958, for example, there were fewer executions than in any other year for which federal statistics were compiled...
...Although theory still lags behind practice, the trend seems clear: capital punishment is on the way out...
...Capital punishment makes jury selection difficult, since many prospective jurymen do not sanction the death penalty...
...The experience of most other abolitionist countries and states also indicates that there may be a perverse contagion between executions and capital crimes...
...Clarence Darrow put his finger on it when he predicted that no rich man would ever be executed...
...DANIEL M. BERMAN, assistant professor of political science at Washington College, was recently awarded a Congressional Fellowship by the American Political Science Association...
...New Jersey and New York are giving the problem serious attention...
...And not every sovereignty which can impose the death penalty chooses to do so...
...Certainly knowledge of consequences does not enter into the "thinking" of a psychopath...
...On a piecemeal, state-by-state basis, this country appears to be joining the 33 nations which have concluded that the death penalty should be discarded...
...Seven Southern states which doomed 78 Negroes for the offense have never put a white man to death for rape although many have been convicted...
...During the moratorium, the Home Office reports, the number of murders was almost ten per cent below what it had been during the preceding year and a half...
...by DANIEL M. BERMAN Several states, notably California as a consequence of the celebrated Chessman case, have reviewed the old controversy over the abolition or retention of capital punishment...
...In states where death is the punishment for crimes like kidnapping and armed robbery, the offender has nothing to lose by committing murder in order to liquidate the witnesses...
...His articles have appeared in The Nation, The New Republic, and various legal journals...
...There is, however, an even more compelling reason why capital punishment has been losing ground...
...If courts have demonstrated increasing reluctance to impose death sentences, state legislatures have shown no similar qualms...
...In some jurisdictions, lawmakers have actually enlarged the list of capital crimes...
...William F. Graves of California are even more disturbing...
...It has failed as a deterrent of crime...
...A disturbing indication of this was furnished by the British, who began an 18-month suspension of the death penalty at the end of 1955...
...From 1930 to 1958, with whites composing 90 per cent of the population, more than half the executions in the United States were of Negroes, according to official statistics of the Federal Bureau of Prisons...
...The abolitionist states, Maine and Rhode Island, have a lower rate than does New England as a whole...
...With odds of more than one hundred-to-one in his favor, why should the professional criminal hesitate...
...As knowledge of the facts spreads, the cause of abolition advances...
...Capital punishment, by diminishing respect for human life and by glorifying the killer and his deed, may actually break down formidable barriers to murder...
...Governor Edmund S. Muskie of Maine has cited the hanging of an "entirely innocent" man as the principal reason for his state's abolition of capital punishment in 1887...
...In addition, we have made the deterrent even less effective by painstakingly attempting to make executions more "humane...
...But there is an additional, tragically ironical possibility to consider: the existence of the death penalty may actually tend to boost the murder rate...
...Yet it has gone steadily down...
...Thus, only 16 of the 43 jurisdictions retaining capital punishment actually used it in 1959, and half the executions took place in four states—California, Arkansas, Florida, and Georgia...
...Despite the widespread prevalence of capital punishment on the statute books, it is a curious fact that, in practice, the death penalty in many states has been gradually curtailed almost to the point of abolition...
...The researches of Dr...
...Viewed in this light, the death penalty is an anachronistic relic of retributive justice...
...A British Royal Commission, after a four-year study of the problem, concluded: "There is no clear evidence in any of the figures we have examined that abolition of capital punishment has led to an increase of the homicide rate, or that its reintroduction has led to a fall...
...These states have now been joined by Delaware, while the admission of Alaska and Hawaii to the Union adds two more to the ranks...
...Perhaps the principal reason for its demise is the modern shift in emphasis from retribution to rehabilitation as the goal of penology...
...States which have eliminated capital punishment have lower murder rates than those retaining it...
...But when the victim is still alive, some sort of restitution can be attempted...
...Until last year, there were only six states—Maine, Michigan, Minnesota, North Dakota, Rhode Island, and Wisconsin—which did not provide for the death penalty...
...The figures are especially horrifying with regard to executions for rape...
...If explanations for this possible correlation between capital punishment and murder are difficult, there is nothing obscure about another fact concerning the death penalty: it is used far more frequently against Negroes than against whites...
...And there are strong reform movements in several states besides California—Connecticut, Illinois, Pennsylvania, and Tennessee...
...Warden Lewis E. Lawes of Sing Sing, who led 150 men to the electric chair, testified that the forecast was accurate...
...When a crime is committed, its perpetrator becomes a logical subject for study to determine whether he can be made fit for reinstatement in free society...
...In striking contrast, the states with the largest number of executions continue to be afflicted with a disproportionately large share of the murders...
...States and nations which have scrapped the death penalty have generally seen no increase in the incidence of murder...
...The present tendency is to attempt, first and foremost, to remove the conditions in which crime tends to breed...
...Only about one per cent of those convicted of intentional homicide are obliged to walk the last mile...
...by 1957, the number of executions had sunk to 65, but the murder rate had dropped, also—to 5.1 per 100,000...
...There are other, even more relevant, arguments which are helping the abolitionist cause: The wrong man is sometimes convicted...
...In 1933, for example, when 160 executions were carried out in the United States the murder rate was 9.47 per 100,000...
...It is, of course, only natural that mistakes are occasionally made...
...It is difficult to study facts like these without concluding that apparently capital punishment is totally ineffective as a deterrent of murder...
...Thus the statistics, buttressed by logic, indicate the futility of capital punishment as a deterrent...
...And, during the 18 months after the hangman's vacation ended, the number of murders jumped more than 25 per cent...
...How else can one interpret the common phenomenon of innocent men confessing to murders...
...The only class of murderers for whom capital punishment could have much deterrent value is the professional gunman—and we have perversely robbed the death penalty of precisely the quality which might make it somewhat effective with this group: certainty that it will be imposed on the malefactor...
...When proponents of capital punishment claim that the decline in the murder rate would have been even more rapid if there had been more executions, they exchange the solid ground of provable fact for the wild blue yonder of speculation...
...All were poor and most of them were friendless," he reported...
...Graves' study of homicides and executions in three California counties over a ten-year period led to this startling discovery: the number of murders was inordinately high for every day on which an execution took place...
...The reasons are by no means clear...
...In the 1930's, the average year saw 150 criminals pay the extreme penalty...
Vol. 24 • September 1960 • No. 4
