Capital Punishment - Barbarism or Necessity?

March 8, 1959
Akron

Late on an August evening, a teen-age boy sat in the kitchen corner while a tinny, primitive radio reported a story that went around the world. Five miles away in an old, dismal, rat-infested prison, located near a clattering, ugly bridge spanning a large railroad switching yard, the electric lights dimmed and brightened several times. After a short period of time, the dimming and brightening re-occurred. The pattern of dimming signified the instant when thousands of volts of electricity were jolted into the bodies of two men, Sacco and Vanzetti. Thirty-one years ago, I was that teen-ager who listened with awed fascination. It was a night to remember.

Thousands of people congregated in the streets near Charlestown State Prison, muttering and surging as the two immigrants, one a shoe-worker, one a fish-pedlar, were killed by decree of the State. In the years that followed I read everything I could about the case and came to believe that Sacco and Vanzetti were innocent of the crime for which they were executed. Because they were political anarchists and economic radicals, they were the victims of a poor verdict.

The youthful experience of living near enough to the death house at Charlestown State Prison so that it was almost daily that I would drive by that institution of hopelessness, undoubtedly played a role in bringing me to the conviction that capital punishment is morally wrong, socially ineffective, and personally harmful.

The subject of capital punishment is chosen at this time because Governor DiSalle has urged that our state legislature abolish the death penalty in the State of Ohio. Because all legal issues are moral issues basically, and because religion which does not wrestle with moral issues is trivial, the controversy about the state's right to extinguish human life is pre-eminently one wherein any thoughtful person must lay hold of the problem in the light of his faith. It is my hope that many of you will write the Governor, or Representative Miss Frances McGovern, an Akron representative, who is chairman of the Judiciary Committee and state your convictions. Whether or not you agree with me is less important than communicating your feelings. The community always makes the decisions in moral dilemmas, either by assertion or by default. As Governor DiSalle pointed out, capital punishment has always been a favorite subject for high-school debating teams. But it is more important than this -- it is a vital option in our civilization.

The reasons for legal killing have shown some variation in history. Many primitive peoples would execute a person only for violation of a sacred tabu - killing a totem animal, e.g. The early Roman Law (Law of the 12 Tables), as well as the codes of some of the Germanic tribes, considered all offenses against individuals the private concern of the one who was injured. Although compensation in money or goods might be in order to the injured party, there was no punishment in the modern sense of the word.

The law of blood revenge was characteristic of the civilizations of the Near East and the Tigris-Euphrates valley. Influences as we have been by the Old Testament codes born in that fertile crescent, the continuance of capital punishment has been part of our Hebrew-Christian cultural inheritance.

Legal execution became tragically widespread in and after the Middle Ages. England, particularly, had the most severe laws. Our American colonies largely adopted English penal codes. In 1780, there were 350 crimes punishable by death in England. Forty[-five] years later, in 1825, there were still 220 offenses for which a person could be legally executed. There were odd differences. In Massachusetts in Puritan days, there were at least a dozen offenses punishable by death. Not so far away, in Pennsylvania at the same time, only murder and treason were capital offenses.

What is the case for capital punishment? There are many thoughtful people who feel it would be a great mistake to abolish the death penalty.

The modern state faces complex difficulties in maintaining peace and order. Punishment for crime is justified on at least three different grounds. First, to reform; second, to deter; third, to exact retribution.

In the matter of the death penalty, the goal of reformation is somewhat impractical. Reform has no application when capital punishment is decreed.

The strongest and most frequently stated argument for capital punishment is that it will have the effect of deterring the act of murder if the criminal knows his own life will be forfeited. Policemen and prison guards are groups who are quite sure that capital punishment acts as a strong deterrent. We are told that the professional criminal seldom commits murder because he, while he is willing to risk years in prison, does not want to chance the electric chair or the gas chamber. No one chooses death except by compulsion. The words of Job are cited, "all that a man has he will give for his life." Now while this overlooks the undeniable condition that there are persons who desire death, the argument of deterrence is not easy to repudiate. There is no way of knowing ever how many murders are prevented by the thread of the hangman's noose. Governor DiSalle has said that he would amend his recommendation for abolishing capital punishment by retaining the death penalty for the murderer of a policeman or a guard.

The third justification for the death penalty for murder, and, sometimes, treason, is the ancient law of talion. An eye for an eye, a tooth for a tooth, a life for a life. We have completely out-grown some of the other ancient retaliations of the mosaic code in Exodus. We do not execute a person who strikes or curses his father or mother (Exodus 21 15 and 17).

Nevertheless vengeance strikes a response in our submerged emotions. The juices of rage bubble within us when we resolve to "get him for that." Theodore Reik, the psycho-analyst, remarks (COMPULSION TO CONFESS, p. 408), "only fools, hypocrites, or sick people deny the deep and voluptuous satisfaction adequate revenge can give." George Herbert Mead once pointed out that criminal law is the "evolved institution of vengeance." We have inherited the cultural notion that when a man has trespassed on the rights of others, or violated important tribal laws, he must be made to suffer. In order to achieve appropriate revenge, the suffering must be appropriate to the crime. The greater the crime, the more terrible the punishment must be.

It is sometimes said that the only way the organized community can make clear its horror of certain crimes such as death and treason, is to denounce the criminal in sternest fashion. The most empathic, final denunciation is the death penalty. Some persons claim that the public demands the ultimate revenge for heinous crime. To push for the abolition of the death penalty is to move too far in advance of public opinion, perhaps. In previous Puritan and Medieval ages, the whole community was summoned to the public square to witness the suffering and degradation of the condemned. Nowadays the witnesses are few in the room of the electric chair or the gas chamber, but our modern news and communication services insure huge publicity for spectacular cases.

The case against capital punishment is lengthy and impressive.

The death penalty does not deter the murderer if the experience of numerous states can be entered as evidence. In 1841, Sam Romilly, a Victorian reformer (see THE OFFENDERS, Playfair and Singleton, Simon and Schuster, NY., 1957) tried to persuade his fellow Englishmen to adopt a more humane method of execution for treason. The law then provided that while the convicted traitor should be hanged, cut down while still living, disemboweled, decapitated, and quartered. Sam Romilly failed in his attempt to convince people that the law should be modified because "his fellow members were afraid that although the terrible penalty had not been enforced for 100 years, there would have been an immediate outbreak of treason if it were replaced by something less severe."

The deterring power of the death penalty seems similarly over-rated today. For example, among the eight states in the United States having the lowest murder rate, five have abolished capital punishment. The state possessing the dubious distinction of the highest murder rate, Georgia, is also the state with the record of more executions than any other - two hundred eighty in twenty years (See Weishofen, THE URGE TO PUNISH).

While the strongest case for the power of the death penalty as a deterring factor is made by police authorities, Governor DiSalle points out (p. 3) that "the rate of fatal attacks on police is almost identical in those jurisdictions which have abolished capital punishment as it is in the jurisdictions which still retain it. The rate is 1.2 fatal attacks per 100,000 population in abolition states, as compared to 1.3 per 100,000 population in capital punishment states, this rate covering a period of the past 35 years." Historically the most revolting kinds of punishments from crucifixion through burning at the stake to modern strangling and burning by 2000 volt shocks have little deterring power.

Statistical studies, not only of comparative figures in our country, but all over the world, reveal that apparently capital punishment or its absence makes no real difference in the frequency of murders. Weinshofen: "The state of Michigan abolished capital punishment more than a hundred years ago. It has consistently had a smaller number of murders per hundred thousand of population than its neighboring states of Illinois, Indiana, and Ohio. It would be invalid to conclude from this that the abolition reduces the incidence of the crime. But it is valid and correct to conclude that the death penalty is not more of a deterrent than other forms of punishment that may be substituted for it.

Another strong argument against capital punishment is that sometimes innocent person are executed. Sacco and Vanzetti were considered innocent, not only by untrained readers, but also some excellent legal minds, including Felix Frankfurter, believed their guilt was not proved. Vanzetti affirmed his innocence in the death chair as the hood was placed over his face. Many sincere people believe the Rosenbergs to be innocent of the treason for which they were executed. [ed.: the following is scribbled out with a pencil] People who have seen the academy award nominee movie, "I Want to Live," tell me this is a heart-rending biography of a woman who may have been innocent of the crime for which she had to inhale the legal, lethal gas.

What is our responsibility for the blood of one innocent victim of a miscarriage of justice? The wheels of justice cannot reverse after the switch is thrown, or the trap sprung. Is it not far better to confine all convicted murderers than to strangle or burn one innocent person?

This should be said also -- the law is not equally applied. Most persons who are convicted of a capital crime are never executed. Either the governor grands executive clemency and commutes the sentence, or the case is reviews and a different decision rendered. Weishofen points out that, "of the few who are actually executed, almost all are poor, almost all are men, and a disproportionately high number are Negroes. Defendants of wealth or education practically never go to the gallows or sit in the electric chair. Neither do women. Warden Lawes of Sing Sing escorted 150 persons to their death. Of them, 150 were poor; 149 were men. During the twenty years 1930-1950 there were 3029 executions in the United States. Of these 21 were women, and of these few, the majority were Negro women."

It is also true that a high proportion of murders and other capital crimes are committed by persons who are temporarily or permanently mentally disturbed. To kill them because of derangement is equivalent to executing a person because he has typhoid and thus menaces the health of his neighbors. Of persons who are suspected of murder (1946-47 Weis.), "over 50 percent are either too mentally disordered to stand trial, or, if tried, are found guilty, but insane." Murders are not committed by the cunning, skilled professional criminal as a rule, but by the emotionally twisted, psychically abnormal person. 2/3 of all murders are unpremeditated.

More telling than the statistics, however, is the nature of the act of execution. The abhorrent nature of legalized murder is reflected not only in the burned or strangled corpse, but also revulsion is mirrored in ourselves. We do have primitive and unlovely urges buried deep within us, among which is the secret satisfaction in the operation of lex talionis. Some persons justify capital punishment because of the biblical authority for revenge in Exodus, overlooking the Sermon on the Mount completely.

"You have heard that they were told, 'An eye for an eye, a tooth for a tooth.' But I tell you not to resist injury...."

The wisdom of the Sermon on the Mount accrues not because Jesus uttered the sayings, but rather because the advice is true to human experience. Retaliation has no reward except brutalization and increased bitterness. Official killing may be legal, but it diminishes human values. At the same time it fails either to deter or reform.

It is here that the eternal and perennial wisdom of the Golden Rule comes into sharp focus. It is not only that the course of true wisdom is to treat our respectable, jolly neighbors as we would like to be treated, but also do unto the unlovely, the repulsive, the twisted, as we would be done by.

As Erich Fromm points out (MAN FOR HIMSELF, p. 225), "whatever you do to others, you also do to yourself." Many times when we strike out savagely at the evil-doer, we are angered because inwardly we have the same impulses to be hostile, aggressive and anti-social which the criminal could not control. We strike in guilt as well as in justice.

Governor DiSalle remarks rather gently, "If we are to command respect for law and order, must not we set an example of constraint?" Our whole civilization is founded on restraint of our impulses, the control and re-direction of strange and not very pretty inner drives we do not usually reveal.

The religion of the Sermon on the Mount undergirds the experience of the present-day -- legal execution is a barbarism. It is not a necessity. By the very nature of our social life together, we are involved in the actions of the State. Religion says know yourself, forgive yourself, accept yourself. Unless we do unto ourselves as we would be done by, we cannot do unto others. It is not easy to forgive and understand others. It is impossible unless we forgive and understand ourselves.

I am opposed to Capital Punishment because a little bit of the best of me dies when another human dies by my consent, my vote, or my silence. This I believe is the central certainty of Albert Schweitzer's affirmation of Reverence for Life; it is the key to understanding why it is that every human personality is of supreme worth; it is the vital truth of Jesus and others who told of the life abundant. Can we begin to be civilized enough to accept the nature of man -- a conscious, moral being who matures inwardly as a direct consequence of what he does outwardly.

Murder is a crime for the criminal. The time has come to legislate out of existence the primitive, unsuccessful institution of legal extinction of human life.