March 13, 1974.
Page 6749
AGAINST CAPITAL PUNISHMENT
Mr. MUSKIE. Mr. President, Senate consideration today of the mandatory capital punishment bill raises the most basic of moral considerations – the value we place on human life. In judging whether or not to sanction the death penalty, we are in fact deciding whether punishment of the criminal should ever warrant the taking of life by the state.
In my view, there has been no demonstration that the death penalty is an effective deterrent to major crimes. The consequences and dangers of execution, however, are clear: the wrong of executing the innocent can never be corrected.
My own State of Maine, for instance, repealed capital punishment in 1887after the State hanged a man later believed to be innocent.
My good friend and colleague, Senator HART, has capably analyzed the issue presented by the broad question of capital punishment, and by the specific bill before us, in his "Additional Views" accompanying the Judiciary subcommittee report on this bill. Senator HART summarizes all the arguments against capital punishment, saying that it has not been proven to increase deterrence, that the cost of life imprisonment may be less than a capital trial and execution, that those imprisoned for life are no more likely to commit murder again, and that execution is not necessary for retribution for crimes when other severe penalties are available. He also argues convincingly that standards in the bill deserve liberalization even if capital punishment is acceptable.
Mr. President, I commend Senator HART for his thorough and persuasive presentation of the case against capital punishment and ask unanimous consent that his "Additional Views," and the appendix to them, be printed in the RECORD.
The PRESIDING OFFICER. Without objection, it is so ordered.
ADDITIONAL VIEWS OF MR. HART
(To accompany the Report of the Subcommittee on Criminal Laws on S. 1401, a bill to provide a revised federal death penalty)
I. INTRODUCTION
The Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972), casts severe doubt on the constitutionality of existing death penalty statutes. In response, the President has proposed a new death penalty.
The constitutionality of S. 1401 itself is unclear. If constitutional, S. 1401 would still be bad legislation – unwise and unjustified.
While I favor abolition of capital punishment, I appreciate that some of my colleagues favor retaining a carefully circumscribed death penalty. But even assuming that a well-drafted bill might be capable of imposing death only in appropriate circumstances, S. 1401 is not such a bill.
It is likely to produce both unjust executions, in some cases, and jury acquittals of guilty murderers, in others. Moreover, it would weaken the ability of police to rescue hostages. For all these reasons, I oppose passage of S.1401.
Part II of these views summarizes the background of S. 1401 and its proposed scheme. Part III examines the general case made for retaining capital punishment. Part IV, assumes that some form of acceptable death penalty might be drafted to apply in appropriate cases, and examines the defects of the particular approach taken by S. 1401.
II. BACKGROUND AND OPERATION OF S. 1401
The Committee report outlines the decision in Furman. Briefly, a five-four majority held that the death penalty, as imposed under the procedures before the Court, constituted "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments.
The full import of the decision is unclear. Each justice in the majority wrote a separate opinion.
Justices Brennan and Marshall found execution a per se violation of the Eighth Amendment. Justice Douglas found he did not have to reach that question and held only that the present system's discriminatory impact made the punishment "cruel and unusual." But there are strong indications he would join Justices Brennan and Marshall in striking down any death penalty.
Accordingly, attention has focused on Justices Stewart and White as the critical votes for any statute which the Court might uphold. Both stressed the rarity of imposition and the arbitrary manner in which it was imposed.
Following Furman, the search commenced for a death penalty which might be made acceptable to a majority of the Court. Several States have taken the straightforward approach of a "mandatory" death penalty. Execution would be automatic for an enumerated list of offenses; anyone convicted of one of these offenses would be killed, regardless of the circumstances.
The problem with this approach is obvious. There is no room at all for the jury to consider mitigating circumstances or to exercise any mercy. Such a Draconian law not only revolts our sense of justice, but also would produce jury "nullification" through either conviction for a lesser-included offense or outright acquittal. Indeed, it was because of this nullification problem at the turn of the century – as society's sense of justice evolved – that mandatory death penalties largely were abandoned for the modern discretionary approach.
Apart from the impact of jury nullification on law enforcement, the barbaric nature of strict mandatory death penalties was well summed up by Justice Blackmun in his Furman dissent:
Such legislation is regressive and of an antique mold, for it eliminates the element of mercy in the imposition of punishment. I thought we had passed beyond that point in our criminology long ago. (Id. at 413.)
S. 1401, then, is an answer offered to both F urman and the criticism of mandatory penalties.
Provisions of S. 1401
How would S. 1401 work? The bill specifies a list of mitigating and aggravating factors the jury may consider, but does not permit discretion to weigh those factors or to consider others. If any mitigating factor is found, death is precluded. If no mitigating factor is found and any one of the aggravating factors is present, the sentence must be death.
S. 1401 permits consideration of only five mitigating circumstances; the offender is under 13 years of age; his participation was peripheral; his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law is "significantly impaired"; he acted under unusual and substantial duress; or (where death actually results) the risk of death was not foreseeable.
Two groups of aggravating circumstances are enumerated.
In the case of "national security" crimes, they are that the defendant has been convicted of a similar capital crime; or knowingly created a grave risk of substantial danger to the national security; or knowingly created a grave risk of death to another person.
For other capital offenses, there must be a homicide and a finding that–
The homicide was committed in the course of committing treason, espionage, sabotage, skyjacking, kidnapping, arson, escape from custody; or
The homicide was committed in an especially "heinous, cruel or depraved manner;"
The homicide was committed for gain;
The victim was a President, Vice President, President-elect or Vice President-elect, Supreme Court Justice, visiting head of state or high foreign official, federal law enforcement officer (broadly defined) or federal corrections officer, killed while performing his duties or because of his official status.
The Committee Report defends S. 1401 on two levels. First, the report reasserts the traditional grounds for retaining the death penalty: that it is necessary (1) to deter other murders; (2) to indicate society's condemnation of heinous acts; and (3) to incapacitate murders again.
Proponents of S. 1401 also claim it meets the constitutional and policy pitfalls raised in Furman. They suggest that unlike other approaches, it is a fair, rational system which would permit execution only in appropriate cases and would avoid the dangers of jury nullification. I believe S. 1401 would do neither. And, of course, I challenge the basic case advanced for retaining the death penalty.
III. THE CASE AGAINST CAPITAL PUNISHMENT
The reasons why I find the arguments for capital punishment unconvincing can be briefly summarized. They are examined in more detail in the appendix to these views.
What do we know about capital punishment? We do know that mistakes will be made through human error and innocent men condemned to die. The Committee claim that this danger has, passed is unconvincing.
Second, we know that those who have been sentenced to death have overwhelmingly been the poor, the minority member, and the unpopular. Rich, white Americans simply are not given the death penalty. In America, racial hostility and anxiety over personal safety are tragically intertwined by both events and design. Each of us can ask ourselves whether we really believe this discriminatory imposition in practice would be eliminated by any bill other than an absolutely mandatory one – which is unacceptable for other reasons.
Third, the very act of premeditated execution is itself a denial of the sanctity of life to which appeal is made by proponents of capital punishment. While we teach people that life should not be taken, executions, at bottom, teach that the state will sanction killing if the benefits are sufficient. Moreover executions today still involve barbaric suffering. Indeed, the brutalizing effect of such horror is recognized by our insistence that men be executed privately, rather than publicly in the city square. That would be the logical way to ensure the purported deterrent effect.
There have also been cases of "suicide murders" induced by the existence of the death penalty; that is, persons who wanted to take their own lives, but were unable to do so and therefore killed so they would in turn be killed by the state.
Surely, in light of these considerations, this awesome ultimate penalty by which we play God can be justified only by some significant demonstration that it is needed to protect human life where other punishments would fail. While those who favor the death penalty ask for conclusive proof it is not necessary, we need only ask for any substantial evidence that it is; none can be provided.
Deterrence
The Administration concedes that deterrence is the principal rationale for the death penalty. But is it a necessary deterrent? An affirmative answer to that question requires more than the simplistic observation that since people fear death most, it must be an effective deterrent.
This appeal to "intuitive logic" often obscures the real issue. No one disputes that capital punishment has some deterrent effect. Presumably all penalties do. That simply is not the question. The point is whether it has a sufficiently greater deterrent effect than life imprisonment.
In other words, is there any substantial demonstration that a significant number of those murders who would be deterred by any punishment would be deterred by death, but not by life imprisonment? If not, how do we justify imposing the ultimate penalty with its risks of irreversible injustice and its other costs to society?
No compelling case has been made that death is a greater deterrent. The evidence simply is not there. With rare unanimity, the studies show no higher criminal homicide rates in states without the death penalty than in those which retain it. In response to the possibility that figures of this kind may reflect divergent social and cultural factors other than capital punishment, more sophisticated studies have compared the rates in contiguous states where history, geography and social and economic conditions are similar. The results are the same. There is no indication the death penalty affects the rate of criminal homicide. Similarly states show no rise in murders once they abolish the penalty, nor a decline if they reinstate it. The Committee critique of the studies is fallacious.
Acknowledging the absence of any data to support the death penalty, both the Justice Department and the Subcommittee Report emphasize instead "empirical evidence" based on the personal impressions of law enforcement officials and statements by individual offenders. These prove little upon closer examination.
One Administration witness, testifying before the House Judiciary Committee cited an American Bar Association study showing instances in which criminals did not carry guns, or kill potential victims because of the death penalty. In fact, no such study exists or was ever made.
In a recent statement of the Department's position, Attorney General Richardson admitted that it is impossible to show with the available statistics that capital punishment has a greater deterrent effect than life imprisonment, but added:
"Statements by offenders concerning the effect of the availability or non-availability of the death penalty upon their actions do demonstrate that in certain instances the death penalty is, in fact a greater deterrent."
With all due respect to the Justice Department, there have been no such reported statements by offenders, to our knowledge, which actually "do demonstrate" that the death penalty is a superior deterrent to life imprisonment. Not only is the motive of such statements suspect. They do not preclude the possibility that those offenders also would have been deterred from carrying loaded weapons, or taking life by the threat of life imprisonment if that had been the highest penalty then available in their state. And, of course, the experience of officials is based primarily on the statements of offenders.
The Attorney General's statement goes on to add:
"Moreover, logic demonstrates that the death penalty will have a material deterrent effect on some potential offenders in some instances."
Examples are then given of such premeditated crimes as kidnapping and skyjacking. But this is to lapse into the irrelevant issue of whether it is a deterrent at all, rather than the pertinent question of whether it deters more than life sentences.
Incapacitating Offenders
Obviously, death does incapacitate, with finality, both those guilty of murder and those who might later have been found to have been innocent. But it often costs the government more to conduct a capital trial, keep a man in the special facilities on death row, and defend appeals, and then execute him, than it would have cost to have imprisoned him for life.
Moreover, despite popular myths to the contrary, the facts show that those sentenced to life imprisonment are no more likely to commit another killing than are members of the general population. Therefore, however much our emotional reactions might tug in the opposite direction, there is no more rational basis for executing someone convicted of homicide, so that he won't kill again, than there is to execute a bank robber or someone who has committed assault and battery, so that he will not kill the next time.
Retribution
It is easy to be unfair to advocates of capital punishment and to characterize their "retribution" argument as a primitive desire for blind vengeance. The claim is more sophisticated. Their first point is that the death penalty offers strong condemnation by society of the most heinous criminal actions, without which expression of revulsion there would be great pressure for private reprisals and vigilante justice. Proponents also suggest that providing the most stringent penalty is necessary in order to demonstrate the intensity with which the act is condemned and thereby reinforce the internalized social restraints which help prevent others from such behavior.
There is no greater evidence of resort to private reprisal or vigilante justice in abolition states than in those with capital punishment. Moreover, the argument is a nonsequitur. To say society can express its utmost condemnation only by imposing its most severe penalty does not necessarily tell us what the upper limit of severity should be – or that it must be the death penalty. If life sentence with no parole were reserved for the most heinous culpable acts, then imposition of that penalty would likewise reinforce the community's internalized sanctions. Finally, the most brutal murders are quite often committed by precisely those deranged or incapacitated persons who are unlikely to be executed in any event.
This, in summary, is the case against retaining capital punishment. It rebuts the Subcommittee's assertion that "necessity" justifies the death penalty in the interest of protecting society.
But a further word is in order in light of the Administration's defense of S. 1401. Even if there is more merit than I have found in the deterrence and retribution accomplishments of the death penalty, one thing is clear. Neither is plausible unless there is a substantial likelihood it will be imposed. Yet most homicides will not be capital offenses under S. 1401. The Justice Department has repeatedly emphasized that it would only apply in an extremely small number of instances .
In the case of deterrence, we are concerned with homicides committed by rational persons who do premeditate and who include in their calculations the possibility of capture and punishment.
Are those individuals not likely to believe that if caught, they can establish one of the mitigating circumstances in S. 1401 and escape the death penalty? Similarly, we have noted that many of the most shocking homicides will not elicit the maximum condemnation of the law under any but an absolutely mandatory death penalty. In short, even the inadequate efforts in S. 1401 to prevent executions offensive to our conscience weaken further the claims of deterrence and retribution.
Thus, S. 1401 underlines the question whether advocates of capital punishment can simultaneously achieve its retention in a form which is effective, and constitutional, and just. An examination of S. 1401 suggests the answer may well be in the negative: that our colleagues either will have to abandon the death penalty or will have to pass a law which is constitutionally defective or one which disregards the palpable injustices that may result.
But this question need not be answered conclusively before acting on S. 1401. A substantial number of our colleagues still favor retaining the death penalty for narrowly circumscribed situations if a workable, just bill can be devised. The remainder of these views are particularly addressed to those Senators and assume such a statute is both desirable and attainable. Even within that framework, it is clear that S. 1401 is not the appropriate vehicle.
IV. LEGISLATIVE DEFECTS OF S. 1401
There are serious policy defects in S. 1401. It excludes considerations relevant to determining whether execution is appropriate and poses a substantial risk of unjust executions. For that reason, it also encourages juries to acquit in the face of clear evidence of guilt. And it poses added dangers for those taken hostage by criminals.
Precluding considerations of mitigating circumstances
The Committee states that to "preclude the consideration of any mitigating circumstances that might justify a lesser punishment in a particular case [would be] clearly unacceptable". P. 14. (Emphasis added.) I agree. Yet by permitting the jury to consider only five mitigating factors, S. 1401 would do just that.
What additional mitigating factors might be relevant in a particular case? We need look no further than S. 1, the comprehensive criminal code reform bill introduced by three distinguished members of the Subcommittee, Senators McClellan, Ervin and Hruska. The death penalty in that bill, Section 1-4E1, includes several circumstances which go beyond those in S. 1401.
S. 1401 only permits the jury to consider whether the defendant acted "under unusual and substantial duress." S. 1 permits the jury to determine if:
(1) The offender acted under unusual pressures or influences or under the domination of another person. (emphasis added.)
Duress involves coercion. The provision in S. 1, which includes the impact of influence or domination, as well as "pressure," clearly permits the jury to consider far more than it may under S. 1401.
Second, while S. 1401 only permits a showing the defendant was less than 18 years of age at the time of the offense, S. 1 would permit a showing that he was emotionally immature.
Third, S. 1 permits the jury to consider the fact the offender has no "significant history of prior criminal activity." This may not be considered under S. 1401. (Prior conviction for certain offenses may be an aggravating factor under S. 1401, but no prior record is required to trigger the death penalty if another aggravating factor is found.)
Commenting on the greater flexibility in S. 1 for the jury to consider these mitigating circumstances, the Attorney General did not dispute their relevance in some cases. Rather, he replied that since such considerations do not preclude the death penalty under S. 1, they "can be drawn with greater breadth," than can those in S. 1401. It is true that under S. 1, the jury's findings on these considerations do not automatically dictate the sentence. But that is not the point here. The important fact is that when they introduced S. 1, Senators McClellan, Ervin and Hruska indicated their appreciation that these considerations might be relevant in some circumstances to whether the death penalty was too harsh or unjust. And the Justice Department apparently does not disagree.
Yet these considerations would be excluded from the jury's consideration in the sentencing proceeding under S. 1401.
In addition to S. 1, it is instructive to consider the Report of the National Commission on Reform of the Federal Criminal Laws, commonly known as the "Brown Commission" after its chairman, former Governor Pat Brown of California. The Brown Commission Final Report offered alternative approaches on capital punishment: abolition of the death penalty, and a proposed death penalty statute should Congress opt for its retention. Their proposal required the court to impose a life sentence rather than death, whatever the jury recommendation, if the judge found:
"(c) Although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendants guilt."
Why was such a provision included? First, it must be remembered that jurors are instructed they may find the prosecution's case "proved beyond a reasonable doubt", even though they are not absolutely certain of the defendant's guilt and retain some ill-defined nagging doubt that the Government's version of events is the truth.
The elements of a capital offense not only may involve proof of objective facts by circumstantial evidence, but also may involve determinations about subjective states of mind and motive: To what degree were the defendant's mental capacities impaired? Did he have treasonous intent? What threat to his own life or limb did he perceive? To say the least these questions involve terribly subjective determinations for the fact finder. Even when a judge believes there is "proof beyond a reasonable doubt," in the sense that he cannot articulate clearly any specific question which remains unanswered, he may still feel a very strong sense of uneasiness that the defendant's assertions have substance. In those few cases, should the court be compelled to send the defendant to his death?
It seems clear that this is the distinction made in the Brown Commission's proposed section on grounds which would preclude the death penalty. There is no comparable provision in S. 1401.
Next we come to several mitigating circumstances which are expressly provided for in both the Brown Commission proposed statute and in S. 1 but which do not expressly appear in S. 1401.
Under the Brown Commission proposal and S. 1, the jury could consider a variety of factors relating to the offender's state of mind at the time of his crime:
If his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was impaired as a result of mental disease or defect or intoxication
If he was under the influence of extreme emotional or mental disturbance;
If he believed the circumstances morally justified or extenuated his act and that belief was plausible by ordinary moral standards.
Together, the provisions would cover not only ongoing mental conditions but also momentary passion, extreme provocation, emotional distress, or justification. The only comparable consideration in S. 1401 is a variation on the first of these. Section (f) (2) of S. 1401 permits the defendant to show that:
His capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
Since this does not require that the impairment result from a mental disease or defect or intoxication, the Justice Department claims it is broader than the corresponding provisions in other proposed statutes. It suggests that Section (f) (2) comprehends provocation, emotional disturbance, actions of passion, and a defendant's belief his action was morally justified; each might be sufficient, in appropriate cases, for the jury to find his ability to appreciate or conform his behavior had been "significantly impaired." In short, the Department acknowledges these factors, too, would sometimes be relevant to a decision on the death penalty, but prefers they be weighed in the process to determining the defendant's capacity to appreciate and conform his conduct.. This approach raises several problems.
Though modified, the provision closely parallels the formulations used for legal insanity and other tests of mental condition. Is it likely that defense counsel will be apprised of its intended breadth from a plain reading of the statute? And what other factors, which we may have failed to raise in our letter to the Attorney General, could defendants establish in order to invoke Section (f) (2)? Moreover, assuming defense counsel somehow learns of its intended coverage, how easy will it be to obtain a jury charge from the court based on this kind of informal legislative history, which does not, for example, appear in the Report. In fact, the Report itself states that the provision requires a showing the defendant's "mental capacity" was impaired. The phrase "mental capacity" connotes an ongoing mental condition even more; it hardly suggests that a plausible belief of moral justification might be sufficient, as the Justice Department contends.
Finally, even assuming a jury charge which spells out the factors the Attorney General says may be considered under Section (f) (2), how is the juror to perform the mental gymnastics such determinations would require? Under this approach the juror must decide not merely whether the defendant plausibly believed the homicide was morally justified. He must simultaneously determine whether that belief was sufficient to "substantially impair" the defendant's capacity. Does that depend on the intensity with which the belief was held? On the nature of the presumed moral justification? On how "plausible" the belief was by common moral standards? Or may the jury consider a mixture of all three aspects? The complexities are overwhelming.
This last mitigating circumstance would best be left a separate element. If the standard, in the Attorney General's phrase, is "too loosely drawn", then we would revise it to read as follows:
"The offense was committed under circumstances which the defendant believed to provide a moral justification, or extenuation, reasonable in fact, by ordinary standards of morality; for his conduct."
Eliminating the reference to "plausible" and changing the standard to "reasonable"' should make that consideration, in and of itself, a sufficient ground to preclude the death penalty. After all, this would not mean the offender would go free. He would face life imprisonment. It would merely mean that if he reasonably thought his behavior was morally justified or extenuated, we would not kill him.
As for the other types of considerations not expressly listed in S. 1401, they should be spelled out as examples of circumstances which might justify a finding under Section (f) (2) of impaired capacity. So amended, Section (f) (2) would read: "His capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired by (a) emotional or mental disturbance or distress; (b) provocation; (c) intoxication; (d) mental disease or defect; (e) other causes; but not so impaired as to constitute a defense to prosecution."
A third omission from the list of mitigating circumstances is the absence of any provision that the death penalty may be inappropriate because of the defendant's cooperation in releasing hostages unharmed. Death is mandatory if a homicide occurs in the course of a kidnaping, skyjacking or prison break, unless one of the five mitigating circumstances is present. Thus, any person already substantially involved in such a homicide and to whom none of the present mitigating factors apply, literally has nothing to lose. If caught, he faces automatic death. (It must be remembered, the bill is premised on the offender's awareness of the penalties.) There is no incentive for him to let any hostages free or permit a plane to land safely. If acts which threaten innocent lives seem to serve his escape, there is no leverage for the police to convince him to release them unharmed.
The Justice Department rejects any consideration in this area, because it "appears desirable on its face, [but] might serve to encourage certain types of offenders to act with impunity, knowing that if they later ... release a hostage, regardless of what they may have done before, the provisions of S. 1404 would require that the death sentence not apply to them."
But again, one must consider a rational murderer, not subject to some other mitigating factor. Is he really likely to kill persons he otherwise would not have slain merely because he can then "gain" life imprisonment by taking and then releasing hostages? We find a different scenario far more likely: Someone is killed at the start of a prison break attempt, or a skyjacking; the perpetrators subsequently hold guards or passengers hostage and face the question whether to kill them, too – in order to delay or avoid capture – since apprehension means certain death. We leave it to our colleagues to ask themselves which situation poses the greater danger to innocent human life.
Next, there is the more fundamental question whether any enumeration can exhaust the factors which may be very relevant in a given case. Chief Justice Burger's dissent in the Furman case, joined by all his dissenting colleagues, emphasized the difficulty of trying to encapsulate all the mitigating circumstances a jury might properly take into account:
However, Mr. Justice Harlan's opinion for the Court in McGautha convincingly demonstrates that all past efforts "to identify before the fact" the cases in which the penalty is to be imposed have been "uniformly unsuccessful," 402 US at 197. One problem is that "the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a single formula. ... (citation omitted) 408 US. at 401.
I appreciate that the constitutional theory of S. 1401 requires an effort to spell out those circumstances insofar as possible. But Congress still can recognize its inability to cover in a short list all the factors which may cry out for mercy in some future case, even though such situations do not now come to mind. Under the Brown Commission statute, in addition to the specified list of factors, death would be precluded upon a finding: "there is some other compelling circumstance which would make sentence of death unjust."
For it to apply, a specific circumstance would have to be raised explicitly by the defense and there would have to be adequate information in the record to support a finding that the factor was present. Moreover, the jury would have to agree upon such a finding and agree that it, alone, rendered the death penalty inappropriate. This would have to be articulated in a special verdict. In contrast, the procedures involved in Furman provided no way of telling what factors had influenced any particular juror, to what degree it influenced him, or whether the other jurors agreed.
Finally, as to the aggravating factors listed in S. 1401, there is no requirement that they be proved beyond a reasonable doubt before the jury or judge could return a special verdict. The Attorney General rejected this suggestion on the ground that the standard presently in the bill – "preponderance of the information" – is the one used in all Federal sentencing proceedings. I hope my colleagues are more willing to recognize the unique nature of a proceeding which might produce an execution.
Capital punishment is terribly irrevocable; men may be sentenced to death for murders they did not commit, or for murders they committed under circumstances different from the good faith findings of the fury.
The possibility of error, present even when proof beyond a reasonable doubt is required, multiplies incalculably when findings which condemn a man to death need only seem more likely than not.
The same kinds of subjective determinations already noted in regard to mitigating circumstances are also involved in any finding of some aggravating factors in S. 1401. Nor is the guaranty of appellate review a significant safeguard, since findings can be overturned only if "clearly erroneous." Should we take a man's life if the fact finder is not at least sure to a moral certainty that the aggravating factor which we say warrants death is, in fact, present?
Danger of jury nullification
In its present form, S. 1401 also poses a risk of jury nullification. Where the ability of the jury to weigh mitigating circumstances is sharply restricted, any jurors determining guilt who are concerned about a possible death sentence will feel greater pressure to hang the jury, convict on a lesser charge, or even acquit despite strong evidence of guilt.
This concern could occur for two reasons: (1) jurors willing to find proof beyond a reasonable doubt according to the court's charge, may still have some malaise about the correctness of that verdict; (2) jurors confident about the verdict of guilt may feel strongly, on the basis of what they have seen and heard at the trial, that a death penalty would be unjust.
The Justice Department claims this danger is eliminated by the separate trials on guilt and punishment. It argues that since the evidence on punishment would not be offered until the second hearing stage, "this should be enough to avoid the inducement of [jury nullification]. But would it be enough? The trial jury would usually be aware it was a capital case. Either they would also be aware of the nature of the sentencing proceeding under S. 1401, or they would not.
If the jury is aware of the sentencing procedure, then it knows it may not even sit at the second stage, given the options under Section (b). And the jurors know that if they do sit on the question of punishment, their ability to show mercy will be curtailed by the quasi-mandatory scheme of S. 1401. Thus, there would be an inducement to implement any qualms about the appropriateness of the death penalty for that particular defendant by preventing a murder conviction at the trial stage.
If the trial jury is ignorant of the sentencing procedures when they commence their deliberations on guilt, then there is still a danger of nullification. For that is the only way a juror who strongly feels death is inappropriate can be sure that his view will prevail and he can avoid complicity in what he regards as an unjust execution. The fact that jurors should not vote on guilt for that reason, under the law, is not the point. Jurors do.
Conclusion
For those who seek a carefully drawn death penalty statute which would avoid unjust results, and provide an effective deterrent, without distorting the criminal justice process or endangering innocent lives, S. 1401 raises many serious problems. I hope my colleagues will consider the advice of a witness at the subcommittee hearings who is an advocate of capital punishment and was an advisor to the Florida Commission created to draft a post-Furman statute. He concluded that S. 1401 would not accomplish its own professional aims and suggested that the Committee "go back to the drawing boards" to see if a better bill was not possible.
[Footnotes Omitted]
APPENDIX TO ADDITIONAL VIEWS OF MR. HART
FURTHER NOTES ON CAPITAL PUNISHMENT
Proponents of capital punishment are asked to show some substantial evidence it is necessary to protect society in view of the dangers of mistaken execution, of its discriminatory application, and of its effect on the public attitude toward the sanctity of human life. Therefore, they dispute these concerns.
Many cases of innocent men condemned to death in America have been documented. Most of the celebrated cases of wrongful conviction, and all of the best documented ones, have involved prisoners alive when the error was discovered, although there have been several very close calls. See H. Bedau, The Death Penalty In America (Rev. ed. 1967) 434-452 (hereinafter cited as Bedau). It is not surprising there are no fully documented incidents of innocent persons who were executed. Once a prisoner is killed, his own efforts at vindication cease. His family, friends and defense counsel are far less likely to pursue efforts to find the actual killer or to establish the actual circumstances where the prisoner did in fact commit a homicide. There are few official channels through which the case can be pursued posthumously.
At least one English case, which played a major role in the reform of English law, should give us pause. Timothy Evans' wife and baby daughter were killed and Evans, a man of subnormal intelligence gave the police a confession. He was convicted and hanged. Four years later, a boarder in the same house, who had been the chief witness against Evans, was found to be a multiple-murderer who had committed homicides strikingly similar to the ones of which Evans had been convicted. An official inquiry judged Evans had been erroneously convicted of his daughter's death, the only one for which he had been tried. He was granted a posthumous pardon, for what that was worth. Hearings on the Death Penalty, before the Subcommittee on Criminal Laws and Procedures, U.S. Senate, 90th Cong. 2d. sess. (1968) 60.
The Evans case is unusual in one sense. Far more often, the basis of the error is mistaken identity. And this points up the weakness in the Subcommittee's argument that present procedural safeguards regarding right to counsel, appeals and so forth "have all but reduced the danger of error in these cases to that of a mere theoretical possibility." Subcommittee Report at 13. This misconceives the nature of appeal and post-conviction remedies. These reviews concern almost exclusively errors of law, not of fact, jury charges, admission and exclusion of evidence, pre-trial proceedings. The one question rarely touched is the credibility of witnesses. Whether eye-witness testimony might be mistaken or a prosecution witness might be perjuring himself is left in our system to the jury. There are now too many documented cases of mistaken conviction to argue the death penalty poses no substantial risk of executing innocent persons. It is extremely unlikely that chance has saved or will save every innocent man who has or will come within inches of death. It is far more likely the records conceal many cases which differ from those we do know about only in that the evidence of their innocence was not revealed because they were killed before it could emerge.
The discriminatory impact an poor and minorities of the death penalty in America has not been definitively adjudicated by the Supreme Court, although many justices have acknowledged the powerful evidence for its existence. See e.g. concurring opinions of Justice Douglas and Marshall in Furman, supra. The leading student of this problem, however, has recently concluded that the present evidence strongly indicates that the death penalty has been imposed with a patterned, systematic racial bias, unexplainable either by statistical chance or any statutory or other legally acceptable basis. Wolfgang and Riedel, Race, Judicial Discretion and the Death Penalty, 407 Annals of the Amer. Academy of Pol. and Soc. Science 119-133 (1973). Of course the possibility of discriminatory application increases with the amount of discretion given the court or jury to impose or withhold the death penalty. But under any save a completely automatic mandatory law the requirement of jury findings on specific factual issues gives substantial play to the possibility of discrimination.
As for the brutalizing effect of the death penalty, abolitionists are often accused of holding a double standard – concern for the sanctity of life when it comes to convicted murderers, but no equal reverence for the lives of the innocent victims. Such attacks are unfair. There is a valid distinction between killing when there is a clear and present danger that one would otherwise become an innocent victim and society's right to punish criminals after the fact of their offense. If execution could bring back to life the innocent victims of criminal murder, or if the prospective victim can save his own life at the cost of killing his attacker, all people except the absolute pacifist would value the innocent life over the life of the murderer. But those are not the kinds of choices we face in passing death penalty statutes unless it is shown that they will protect innocent lives effectively when other punishments. will not. This brings us to the question of deterrence.
As noted in the Individual Views, the debate over the deterrent effect of the death penalty is shaped largely by the formulation of the question at issue and by the side which is thought to bear the burden of proof.
It seems to me that the pertinent question is clear: Is life imprisonment as good a deterrent as capital punishment for the crimes which a proposed statute would make capital.
Regarding the question of who should have the burden of the argument. I have explained my position in the Views, but a note can be added. In his dissenting opinion in Furman, Chief Justice Burger rejected the notion that proponents of capital punishment be asked to demonstrate its superiority as a deterrent to life imprisonment, unless we are prepared to make a similar inquiry regarding all gradations in punishment – that 20 years imprisonment is more effective than five, or that a $100 fine is more effective than a $10 fine. 408 U.S. at 396. Those additional questions may indeed make interesting inquiries as we revise the entire sentencing structure of our federal penal laws. But as Justice White recognized – and we think most people would agree – the death penalty is a "unique penalty" qualitatively different in its finality, its infliction of pain and terror, its distortion of the criminal justice process, and its impact on society. For that reason, I see no problem with requiring a more substantial showing it is necessary, than in the case of lesser punishments.
What do the available studies and research tell about the deterrent effect of the death penalty as compared to life imprisonment?
1. Death penalty jurisdictions do not have a lower rate of criminal homicide than abolition jurisdictions, even when one compares contiguous or otherwise comparable States;
2: In jurisdictions which abolish the death penalty, abolition has no influence on the rate of criminal homicide;
3. Jurisdictions which reintroduce the death penalty after its temporary abolition do not show a decreased rate of criminal homicide after its reinstatement. (See Bedau, supra, Ch. 6: Andenaes, "Does Punishment Deter Crime," 11 Criminal Law Quarterly, Quarterly 76, 83 (1968.); Sellin, Capital Punishment (1967).)
As for the impact on the safety of law enforcement officers and prison guards:
4. Police officers do not suffer a higher rate of criminal assault or homicide in abolition jurisdictions than in death penalty jurisdictions. Sellin, "Does the Death Penalty Protect Municipal Police" in Bedau, supra, at 284.
5. Nor do corrections guards suffer higher rates of assault or homicide in abolition states than in death penalty states. Sellin, Capital Punishment (1967) 154-160.
Death penalty proponents claim these figures are irrelevant because they never reflect persons who were in fact deterred from homicide by the threat of execution. But think about that argument. Assume State X and State Y have the same murder rate. State X has the death penalty. State Y does not. Proponents suggest the death penalty is a more effective deterrent but they cannot show it because persons deterred from killing in State X don't show up in the statistics.
But what about the people in State Y who might have killed but were deterred by life imprisonment? The proponents argument requires the totally unwarranted assumption that, to begin with, there are a far greater number of potential murders in states with capital punishment than in states without it. Only if that assumption is made, could the equal homicide rates reflect a greater deterrence by the death penalty. There is no basis for such an assumption. If the assumption is not made, then essentially equal homicide rates suggest that the two penalties serve equally well to deter potential killers who do not show up in the statistics. This point can be seen even more clearly if we take a jurisdiction which had abolished the death penalty, but then reinstated it yet experienced no drop in the homicide rate. The Subcommittee's thesis requires the assumption that for some unexplained reason the number of would-be murderers in the state suddenly shot up when the death penalty was reintroduced, and that is the reason the homicide rate stayed the same even though the death penalty was deterring more people than had the previous threat of life imprisonment.
The Subcommittee further challenges these studies because they are based largely on aggregate homicide figures which do not distinguish capital from non-capital offenses. Report at 8-9. Great emphasis is placed on this point. But the Subcommittee's challenge suffers from the same defect just noted. Suppose State X has abolished capital punishment. The death penalty is reinstated with no drop in the overall homicide rate. The Subcommittee must assume that for some unexplained reason the number of homicides other than first degree murder have suddenly shot up when the death penalty was introduced. Otherwise, the steady homicide rate means that the rate of first-degree murders has stayed the same, i.e. that the proportion of capital and non-capital homicides has not substantially changed. Not only is this assumption offered without any basis; it contradicts another assertion in the Report, namely, that the death penalty has some deterrent effect even on the perpetration of non-capital homicides.
Nonetheless we agree with the Subcommittee that the evidence is not conclusive. The Subcommittee quotes one of the leading experts on capital punishment in America, Professor Hugo Bedau, for this proposition. Report at 14. But it omits Professor Bedau's overall conclusion based on his exhaustive study of the American experience with the death penalty:
"What do all these studies, taken together, seem to show? The results are negative; there is no evidence to support the theory that the death penalty is a deterrent superior to imprisonment for the crime of murder." Bedau, supra, at 264. (italic added)
Similarly, in their opinions in the Furman case, both justices who joined the majority and some of those dissenting agreed there was no substantial evidence demonstrating that capital punishment is a more effective deterrent. See 408 US. at 307 n.7 (Mr. Justice Stewart, concurring); Id. at 395-8 (Chief Justice Burger dissenting); Id. at 416 (Mr. Justice Blackmun, dissenting); and Id. at 455-56 (Mr. Justice Powell, dissenting.)
Accordingly it is worth pursuing a little further the other "empirical arguments" of those supporting the death penalty. We have already discussed the so-called "American Bar Association study" in our Views. See p. 4, n. 6. The Subcommittee Report relies primarily on the stated opinions of several law enforcement officials. These views presumably are based either on intuition or on conversations with captured criminals. But the significance of these conversations, and hence the opinions based upon them, is elusive. For example, the Justice Department in earlier Congressional testimony cited a Los Angeles Police Department analysis based on interrogation of 12 robbery suspects. Each reportedly indicated they had used unloaded or toy guns to avoid the risk of killing someone and being executed. Testimony of Henry Peterson, supra Individual Views, p. 4, n. 6.
Taking these statements at face value, they do not necessarily show anything more than that those defendants were deterred by the prospect of receiving the most severe penalty which they knew the state might impose for murder. We have no way of knowing whether, if California's toughest penalty at the time had been life imprisonment, they might have said "I didn't load my gun because I was afraid of getting life imprisonment." Without more information, use of such comments by offenders assumes the very proposition for which they are offered, namely, that the death penalty is a superior deterrent. Is it not likely, for example, that some robbers in Wisconsin or Michigan have used unloaded guns because they feared imprisonment with the possibility of parole being denied for much of the remainder of their life?
Moreover, it is not clear what may have been the motive of such statements. Warden Duffy of San Quentin, who personally interviewed thousands of prisoners on and off death row, reports that none indicated the death penalty was a factor they weighed. Other leading corrections officials confirm his experience. More importantly, many of those in prison for crimes other than murder told Warden Duffy that they had responded to police interrogation that the death penalty deterred them from using guns or killing because it seemed what the police wanted to hear. Many indicated to Warden Duffy that, in fact, they simply had not wanted to hurt anyone and merely wanted money. Hearings on the Death Penalty before the Subcommittee on Criminal Laws and Procedures, U.S. Senate, 90th Cong. 2d sees. 23 (1968).
The Subcommittee cites a dramatic threat to throw a grenade at hostages because the death penalty had been struck down. Yet the grenade was never thrown, according to the same news story cited. Report p. 11. What deterred the robber from throwing it, if he disregarded the death penalty?
As in the case of the studies, we cannot be sure about the significance of alleged "personal experience." It is possible that a few potential killers have been deterred by the prospect of the death penalty but would not have been deterred by life imprisonment. But they may well be offset – from any saving life perspective – by the instances of "suicide murders" committed by persons unable to take their own life who sought to produce their own execution. Several such cases have been documented. Ibid. at 125-27.
The superior "incapacitation" of the death penalty is usually advanced in terms of cost and the risk of recidivism. Recent experience has been that the total costs of trying, guarding, and executing someone approximate – and may exceed – the costs of life imprisonment. McGhee, "Capital Punishment as Seen by a Correctional Administrator", 28 Fed. Probation 13(1964); "The Death Penalty Cases" 56 California Law Rev. 1268 (1968); Washington Research Project, The Case Against Capital Punishment 61--62(1971). The studies done on recidivist rates for
convicted murderers in both capital punishment and death penalty states show no greater risk that they will commit another murder than any other former offender. Indeed, some studies support the testimony of many corrections experts that convicted murderers rarely are involved in another homicide. Bedau, supra, at 395-400. This conclusion is applicable not only to those given life imprisonment (who might be deemed less likely to be hard core murderers) but also of those condemned and then pardoned. Of course a few convicted murderers will kill again, or attempt to do so, both within the prison and if they are subsequently released. Such cases understandably are well publicized and heighten calls for the death penalty. But other offenders, from armed robbers to petty grafters, also may commit murder and in a few cases they will. The Subcommittee's appeal to "necessity" to protect society provides no greater case for executing murderers to incapacitate them, than it does for executing those convicted of other crimes.
Appeals to intuitive logic have been made by arguments that those already serving life imprisonment "have nothing to lose" and, without the deterrent of a death penalty, might easily contemplate killing a fellow prisoner or guard in an escape attempt. But this claim ignores the vast difference in conditions of incarceration – maximum security versus normal routine or even trustee status. Moreover, it ignores the possibilities of parole or clemency.
The Subcommittee Report, itself, suggests that a life sentence without the possibility of parole is too dangerous because wardens would then have no "hold" over such prisoners to control their behavior. Report at 11. Many states do deny or restrict parole opportunities for those under life sentence and the Subcommittee cites no study showing greater incidence of recidivism by imprisoned killers in those jurisdictions. See Bedau, supra, at 402. Second, denial of parole still leaves the possibility of executive clemency, which under the federal system probably could not be constitutionally denied.
In any event, the majority supporting the Subcommittee Report cannot have it both ways. Either the possible extinction of parole and clemency chances is a significant deterrent for those serving life imprisonment, as we suggest, or it does not, in which case the majority's objection to dealing with "incapacitation" for the most hardened murderers by a life sentence without parole cannot stand.
The brutalizing aspects of the death penalty involve both physical suffering and mental agony. In Reflections on the Guillotine, Camus wrote: "But what then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life."
The physical suffering inflicted by execution is recounted in the following eyewitness accounts collected in The Case Against the Death Penalty, by the Washington Research Project.
The classic form of execution, still used by several states, is hanging. Warden Duffy of San Quentin, a frequent witness, describes the process:
"The day before an execution the prisoner goes through a harrowing experience of being weighed, measured for length of drop to assure breaking of the neck, the size of the neck, body measurements, et cetera. When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoners strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness room. The prisoner remains dangling from the end of the rope for from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his hear beat with a stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerable struggling in an effort to breathe."
The first major substitute for hanging was electrocution, still the most widely used form of execution in this country. The prisoner's hair is cropped short, and a pants leg is slit. He or she is led – or dragged – into the death chamber, strapped securely in the chair, and electrodes are fastened to the leg and head. Then, as Warden Lawes of Sing Sing describes it:
"As the switch is thrown into its sockets there is a sputtering drone, and the body leaps as if to break the strong leather straps that hold it. Sometimes a thin gray wisp of smoke pushes itself out from under the helmet that holds the head electrode, followed by the faint odor of burning flesh. The hands turn red, then white, and the cords of the neck stand out like steel bands. After what seems an age, but is, in fact, only two minutes, during which time the initial voltage of 2,000 to 2,200 and amperage of 7 to 12 are lowered and reapplied at various intervals, the switch is pulled and the body sags and relaxes, somewhat as a very tired man would do.
As another frequent witness has reported: "The noise is loud. The dying man fights the straps with amazing strength. Usually, some smoke rises up from the chair ... The body will burn if it requires a second or third jolt or if the condemned perspires excessively." In some cases, the eyeballs burst from their sockets.
The length of time it takes to die in the electric chair is open to serious question. Often several shocks are required, over a period of some minutes. The prison doctors who pronounced Julius Rosenberg dead, after two minutes and three shocks, found that his wife Ethel was still alive after three applications of current. They pronounced her dead after two more shocks and a total of over four minutes. No one knows whether electrocuted individuals retain consciousness until dead, but if they do it is certain that such a form of torture would rival that of burning at the stake. A French scientist has concluded:
I do not believe that anyone killed by electrocution dies instantly, no matter how weak the subject may be. This method of execution is a form of torture.
Electrocutions, too, can go wrong, and one that did produced a celebrated Supreme Court decision. Louisiana attempted to execute Willie Francis, a teenager, but the current was apparently not strong enough. As one witness described the scene–
"Then the electrocutioner turned on the switch and when he did Willie Francis' lips puffed out and he groaned and jumped so that the chair came off the floor. Apparently the switch was turned on twice and then the condemned man yelled: 'Take it off. Let me breathe.' "
The current was turned off, and Francis was returned to his cell to await another attempt on his life. Later, by a five to four vote, the Supreme Court held that the Constitution did not forbid sending him to the chair a second time, and he died there.
The third major method of execution used in the United States is the application of lethal gas. Warden Duffy, who has seen many gassings, reports that the prisoner is strapped in a chair, the chamber is sealed, and the cyanide gas eggs are dropped into the sulphuric acid. When the gas reaches the prisoner "at first there is extreme evidence of horror, pain, strangling. The eyes pop, they turn purple, they drool. It is a horrible sight. Witnesses faint. It finally is as though he has gone to sleep." It is controversial how quickly the prisoner loses consciousness. Some medical experts believe cyanide poisoning amounts to slow, agonizing strangulation. It was reported that Caryl Chessman gave a prearranged signal six minutes after the gas reached him. The last execution in the United States, the gassing of Luis Jose Monge in Colorado in June of 1967, produced this eyewitness account:
"According to the official execution log unconsciousness came more than five minutes after the cyanide splashed down into the sulphuric acid. And to those of us who watched, this five minute interlude seemed interminable. Even after unconsciousness is declared officially, the prisoner's body continues to fight for life. He coughs and groans. The lips make little pouting motions resembling the motions made by a goldfish in his bowl. The head strains back and then slowly sinks down to the chest. And in Monge's case, the arms, although tightly bound to the chair, strained at the straps, and the hands clawed torturously as if the prisoner were struggling for air." The Case Against Capital Punishment at 34-73.