CAPITAL PUNISHMENT: A FADING PRACTICE

A Utilitarian Age Looks Hard at the Deterrent Value

IN England around 1800, more than 200 offenses, including forgery, poaching, cutting down somebody else's tree and associating with gypsies, were punishable by death.

Women and children were hanged for petty theft. In 1801, for example, Andrew Brenning, 13, was hanged for breaking into a house and stealing a spoon.

Hangings were attended by huge crowds, and since spectators were preoccupied with watching the gallows, hangings were favorite hunting grounds for pickpockets, even though picking a pocket was a capital offense. If opponents of capital punishment had to sum up their entire case in one tableau, it would be a scene showing a 19th century English pickpocket reaching for the pocket of a spectator at the hanging of a pickpocket.

On the Continent, a movement to restrict capital punishment to serious crimes had been under way for decades, largely under the influence of the Italian reformer Cesare Beccaria, who argued that harsh punishments had a brutalizing effect upon society and thus bred crime instead of deterring it. But to the rulers of England, it seemed that capital punishment, even for offenses now considered petty, was necessary for the preservation of law and order. Cried Lord Ellenborough, Chief Justice of England, speaking in the House of Lords in 1810 against a bill to abolish the death penalty for shoplifting: "I am certain depredations to an unlimited extent would immediately be committed . . . Repeal this law and see the contrast--no man can trust himself for an hour out of doors without the most alarming apprehensions that, on his return, every vestige of his property will be swept off by the hardened robber." But the tides of history were running against Lord Ellenborough.

Today capital punishment has been abolished over much of Western civilization. In Western Europe, the death penalty survives only in Britain (hanging), the Irish Republic (hanging), France (guillotining) and Spain (garroting), and by the standards of 1800, executions in these countries are exceedingly rare. In Britain, by new (1957) legislation, the death penalty is carried out only for a few varieties of homicide classified as "capital murder" (killing a policeman, multiple murder, etc.).

In the U.S., six states have abolished capital punishment entirely: Wisconsin (1853), Maine (1887), Minnesota (1911), Alaska (pre-statehood), Hawaii (pre-statehood), Delaware (1958). Three others, Michigan, Rhode Island and North Dakota, are usually counted as abolition states, because they retain the death penalty only for one or two rare offenses (treason, murder in prison by a convicted murderer) and never invoke it. Eight other states abolished capital punishment at one time or another but later restored it. Missouri, for example, abolished the death penalty in 1917, reinstated it in 1919 after hoodlums killed two policemen in a gun fight.

Though there are more U.S. capital-punishment states today than at the low point of 1917, capital punishment is waning in practice in the U.S. as it is in Western Europe. During the 1930s, civil executions in the U.S. averaged 167 a year; during the 1950s, the average was down to 72. Last year only 49 civil executions were carried out in the U.S., one more than the alltime low recorded in 1958. Women are virtually exempted from the death penalty: not one was executed in the U.S. in 1958 or 1959, and only 31 have been executed over the past three decades (29 for murder, one for kidnaping, one for treason).

There are six capital crimes under federal law (murder, rape, bank robbery, kidnaping, treason, espionage) and some 30 under state laws (e.g., aiding a suicide in Arkansas or burning a railway bridge in Georgia), but in practice the death penalty is seldom carried out in the U.S. for offenses other than 1) murder and 2)rape committed by a Negro in the South. Of the 97 men executed in the U.S., in 1958-59 under state laws, 81 were convicted of murder, 15 of rape (14 Negroes, one white, all in Southern states), and one of armed robbery (a Negro, in Texas).

If opponents of capital punishment were patient enough, they could just sit back and wait for it to fade away--in practice, if not on the statute books. But abolitionists try to hasten that fadeaway by argument.

The traditional vocabulary of debate about capital punishment is sprinkled with such terms as "sanctity of life" and "retribution," and "moral law" and "natural right," but they have largely disappeared from the debate during the past decade or so. Mainly among clergymen is the capital-punishment issue argued on moral-religious grounds. The Roman Catholic Church defends society's right to take a criminal's life as an act of collective self-defense, and a spokesman of the Lutheran Church, Missouri Synod says that "the Bible seems to permit the possibility of capital punishment." Several of the other religious groups in the U.S. have taken stands against capital punishment: the Methodist Church, the United Presbyterian Church in the U.S.A., the Protestant Episcopal Church, the American Baptist Convention, the Central Conference of American Rabbis, the Union of American Hebrew Congregations.

Among laymen, the arguments tend to be utilitarian. Psychology is nibbling at the fringes of the law to raise the question of whether any murderer can be classified as sane. But most debate turns on the question of whether capital punishment has a deterrent effect on crime. Many defenders of capital punishment tend to agree with James Pike, Protestant Episcopal bishop of California, that "the possibility of deterrence provides the only viable, moral justification" for the death penalty.

In arguing that capital punishment has no deterrent value, its opponents usually appeal to statistics. Often cited is the 1953 report of the British Royal Commission on Capital Punishment, which, after a painstaking statistical study of comparative homicide rates in various countries over the years, concluded that "there is no clear evidence of any influence of the death penalty on the homicide rates." In retorting to the arguments of law-enforcement authorities that the death penalty is needed to keep criminals from killing policemen, abolitionists point to the University of Pennsylvania Criminologist Thorsten Sellin's massive study of fatal attacks on policemen in some 260 Northern U.S. cities. By Sellin's mathematics, the rate of such attacks was slightly higher in death-penalty states than in abolition states.

Against the abolitionists' statistics, defenders of capital punishment appeal to common sense (men fear death, therefore potential murderers must fear the death penalty) and to the opinions of law-enforcement officers (burglars seldom carry guns, and robbers sometimes use unloaded guns, because they do not want to risk killing somebody). Says Los Angeles County Prosecutor Miller Leavy, who argued the state's case against Caryl Chessman back in 1948: "Capital punishment is necessary in our community." In most states of the U.S., it seems, a majority of the legislators agrees with him.

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