Criminal Justice: Death for the Death Penalty?

For decades, Western civilization has been edging away from the Biblical in junction of an "eye for an eye." In Britain, the death penalty (hanging) is now close to being abolished. In Europe, it survives only in France (guillotining) and Spain (garroting). Abolition has been slower in the U.S., but with the recent addition of Oregon, Iowa and West Virginia, the number of no-death-penalty states has risen to eleven. Last week the U.S. Bureau of Prisons reported a record low of 15 executions in 1964, compared with a yearly average of 167 in the 1930s.

The drive against the death penalty is gathering new momentum, gaining support from such religious groups as the Methodist Church, the Protestant Episcopal Church, the American Baptist Convention and the United Presbyterian Church in the U.S.A. Ardent in dividual abolitionists have ranged from the late Supreme Court Justice Felix Frankfurter to Jack R. Johnson, tough warden of Chicago's Cook County Jail, who says, "The death penalty isn't punishment — it's revenge."

The cause is steadily gaining converts among U.S. Governors, such as Tennes see's Frank G. Clement, whose recent plea for abolition ("Thou shalt not kill") lost by only one vote in the state legislature. Hurrying to Death Row, Clement immediately commuted the sentences of five condemned Negroes to 99 years. Abolition lost in Indiana this month only because the last-minute murder of three policemen persuaded the Governor to veto it. Last week it was being discussed by the legislatures in Illinois, Vermont and New York, where an influential bipartisan commission called execution "an act of supreme violence" and argued that New York can punish murder "without resort to barbarism of this kind."

De Facto Abolition. For all the current abolitionist enthusiasm, the death pen alty has in fact been dying for some time. The country's murder rate is 40% less than it was in the 1930s, and more murderers are being committed to men tal institutions. Modern penology has swung from retaliation to rehabilitation, and paroled murderers rarely murder again. Even states empowered to execute are loath to do so. While rejecting abolition, Massachusetts has not executed anyone since 1947. New Hampshire has put no one to death since 1939. According to the most recent Gallup poll, only 45% of Americans now favor capital punishment, compared with 68% in 1953.

Abolitionists claim that the shift in public opinion ironically puts accused murderers in double trouble by creating "hanging juries." By rejecting jurors who oppose execution, says University of Texas Law Professor Walter E. Oberer, prosecutors get jurors "who not only condone capital punishment, but believe in it." Abolitionists also argue that execution is performed capriciously —on only one out of 100 convicted murderers, and then usually on the poor, friendless and uneducated. Some 54% of the 3,885 Americans executed since 1930 have been Negroes, and in the 1950s, for example, Ohio executed 51% of whites and 78% of Negroes found guilty of capital offenses.