Good evening and welcome to THE ADVOCATES, the weekly PBS
series of debates on matters of public importance. Tonight's broadcast is
coming to you from historic Faneuil Hall in Boston. Our debate concerns
capital punishment and, specifically, the question, Should your state
restore the death penalty?" Arguing in support of the proposal is advocate
William Rusher, publisher of the conservative journal, National Review. Mr.
Rusher's witnesses will be Robert Shevin, Attorney General of Florida, and
Rev. Bruce Williams, Professor of Philosophy at St. John's University.
Opposing restoration of the death penalty is advocate Alan Dershowitz,
Professor of Law at Harvard University. Appearing with Mr. Dershowitz will
be Shane Creamer, Attorney General from Pennsylvania, and Dr. Louis West,
Professor of Psychiatry at UCLA.
Moderator Michael Dukakis has just called tonight's meeting
Welcome, ladies and gentlemen, to Boston's historic
Faneuil Hall and to The Advocates. Nearly every state in the Union is now
considering the question which we debate this evening, "Should the states
restore the death penalty?" Advocate William Rusher says yes.
Recent polls have shown that public opinion is swinging
sharply back to the belief that for certain types of crimes the death
penalty is the only sensible solution. In this belief the American people
are absolutely right, and tonight we will show you why, practically as well
as philosophically, the death penalty is sound.
Thank you Mr. Rusher. Advocate Alan Dershowitz says
As you listen to the evidence of those who would return
us to the barbaric days of the hangman, ask yourselves whether they can
sustain the heavy burden required to take human life, whether the evidence
really convinces you that your safety requires the premeditated judicial
killing of another human being.
Thank you, gentlemen. We'll be back to you in a moment,
but first some background on tonight's question. Last June the United States
Supreme Court, in a five to four decision, held that the death penalty as
applied in the various states under state statutes was unconstitutional and
was a violation of the constitutional protection against cruel and unusual
punishment. The words as applied in that decision are important, because at
least two of the justices who comprised the majority of the Supreme Court in
that decision made it clear that they objected to the death penalty because,
in their words, "this unique penalty was being so wantonly and freakishly
imposed," rather than objecting to the particular issue of the right of the
state to take a life in the commission of a particularly heinous
Early in December, the organization of state Attorneys
General met in San Diego to discuss the implications of the Supreme Court
decision on capital punishment. And at that meeting, the Attorneys General
recommended by a vote of 32 to one that the states restore the death
penalty. They discussed at that conference several different proposals based
on several different interpretations of the Supreme Court decision, and the
consensus at the conference was that a state statute which imposed a
mandatory death sentence for specific crimes, crimes like premeditated
murder and skyjacking, for example, would have the best chance of satisfying
at least two or three of the justices who comprised the majority in the
Supreme Court decision.
Tonight, in debating whether the states should restore the
death penalty, we are asking, in effect, two questions. First, should a
state have the power to impose the death penalty for the commission of a
particularly hideous crime; and, if so, can that power be used in such a
fair and uniform way that it can meet the objections that those who charge
that the application of the death penalty in the past has been
discriminatory. And now, to the cases. Mr. Rusher, the floor is yours.
If I may begin with a personal reference, I have always
been opposed to what I considered the overuse of the death penalty. A person
who kills someone in the heat of passion or accidentally in the course of a
robbery cannot be said to have a fully formed intention to kill, let alone
to have had time to consider the possible consequences for himself. In such
cases, I have believed, and I still believe, that the death penalty is
wrong. But in the past few years, the permissive mood, that has washed over
America like some warm engulfing tide, has taken this perfectly sensible
point and pushed it to the insanely illogical extreme of wanting to abolish
the death penalty altogether. And that would be a very big mistake.
I have no quarrel with what I take to be the basic point of
the Supreme Court majority, namely, that the death penalty should be
narrowed, made more precise, and made more consistent. But the death penalty
remains the only logical answer to certain sorts of human conduct, the kind
of deliberate premeditated murder, for example, in which Charlie Manson and
his girl friends indulged for kicks, or the murder of prison guards by men
who are already under a life sentence and have nothing else to lose. Recent
polls and ballot referenda make it plain that the voters have had it up to
here with people who are forever in favor of coddling murderers but who
somehow never find time to give thought to their potential victim.
The arguments for the death penalty are both practical and
philosophical. And to consider the later first, I call upon Father Bruce
Welcome to The Advocates, Father Williams. Nice to have
you with us.
Father Williams is a Dominican priest and Professor of
Moral Philosophy at St. John's University in New York City. Father Williams,
what, in your opinion, is the basic philosophical case in favor of restoring
the death penalty for certain specific crimes?
In my own view, the underlying principle would be the
principle of-retributive justice, and this needs to be explained, especially
since nowadays it's rather largely misconceived. By retributive justice, I
don't mean the animalistic indulgence in personal spite or maliciousness
against an offender. What I mean, rather, is that there are certain
important social values, to begin with, the right to life, which must be
upheld for the sake of an orderly society, and that those who affront these
values by their violent behavior must be called to account for their actions
by proportionate punishment. So that, for example, in the case of someone
who deliberately takes a life, our willingness to impose the death penalty
is our testimony to how seriously we take the value he has offended
But aren't we, as it is sometimes said, really
brutalizing both ourselves and the criminal when we deliberately put someone
I've heard that charge often, and I frankly don't accept
it. I see nothing brutal about treating a person as a responsible agent who
can be held accountable for his acts and requiring that he sustain a burden
proportionate to the burden he has wrongly inflicted upon others. Quite the
contrary. I think what is brutalizing and dehumanizing is to overthrow our
principle of retributive justice and, in effect, treat the criminal as less
than a responsible agent, as some sort of behavioral animal who is not
really responsible and culpable for his crimes, who has to be treated and
cured but not punished.
Are you saying, though, that retributive justice or
retribution is the only factor to be considered? What about
Deterrence certainly is a factor, and, indeed, I would
say it's a factor in two ways. The first way, which is the most
conventionally understood way, is in the sense of intimidating people who
are, here and now, seriously contemplating committing these crimes. But
there is a second and, in my view, more basic sense in which any punishment,
and, in particular, capital punishment, would act as a deterrent, namely,
that by underlining society's conviction as to the abhorrent character of
certain crimes, it makes these crimes unthinkable on the part of many people
who might otherwise have thought about them.
How do you square, though, the death penalty with the
personal right of every human being to life?
In pretty much the same way that I would square prisons
with the personal right of everyone to freedom, namely, that our values of
life and freedom are so precious that we must require those who deprive
others of these goods to suffer the deprivation of them themselves as
punishment. How seriously we take these values is attested to very largely
by how severely we are willing to punish those who affront them.
And finally, sir, how do you square the death penalty
with the Christian concept of mercy?
We can't even have a concept of mercy if we don't have a
principle of retributive justice to begin with. There first has to be an
understanding that offenses demand punishments. And once we have a principle
like this, then mercy on the part of a governor or whoever can relax the
strict requirements of justice in an individual case. But if we try to
codify the notion of mercy without a sense of retributive justice in the
first place, we don't have mercy; we have sentimentality.
In effect, then, mercy can only exist on a preliminary
and a prior basis of retributive justice. Is that correct?
That's my view.
I have no further questions.
And I assume, Father Williams, that you would permit a
governor or somebody to exercise that merciful quality or act if necessary,
even after the sentence had been imposed. Is that correct?
All right, Mr. Dershowitz, it's time for you to ask some
Mercy may very well require retribution, but it surely
doesn't require the death penalty, does it? One could have mercy without a
I don't think we can have retribution adequately unless
there is some notion of a proportion between the burden we are inflicting on
the offender and the burden he has imposed.
Well, today we think of the death penalty as the supreme
penalty. There was a time, not many years ago, when we routinely imposed
torture on those who tortured. Would you sustain that as retributivist and
I doubt if we routinely imposed it. You mean it's been
done in the history of civilization.
It's been done for people who have tortured.
My view is not, Mr. Dershowitz, that every circumstance
-of the crime has to be imitated by every circumstance of the
Why the killing?
…This is not always even possible. For instance, if a
man has murdered three times, he cannot be executed three times.
But why must we kill him?
Because I think the value of life is a value that of
itself transcends the value of freedom, property, what have you.
Isn't that only because we, today, regard capital
punishment as the supreme penalty? If we were to regard life imprisonment as
the supreme penalty, wouldn't that be enough to serve as retribution for
I'm not too sure it's correct to say that our regard for
capital punishment as a supreme penalty is a uniquely contemporary
phenomenon. It was argued centuries ago, in fact, by reputable Christian
philosophers, that the thing a man naturally fears to lose most is his life.
And it would seem that to impose no greater penalty on a person who has
deliberately taken a life than upon a person who has committed an obviously
lesser offense is to, in effect, equate the value of life with the value of
these other things.
Surely, you're not arguing-that a state that abolishes
the death penalty is acting immorally, is it? Is it immoral not to
I'm suggesting that a certain failure to insist upon
retribution, even to the extent of the supreme penalty, indicates, if you
don't like the word immorality, a certain softness toward the heinousness of
the crimes under…
So the vast majority of countries in the world that have
abolished the death penalty are acting, if not immorally, at least
I believe that there is a growing lack of sensitivity on
the part of many nations that are, in other respects, perhaps quite
But you, yourself, would not insist on the death penalty
as a retributive function. You would say retribution is necessary, but you
also have to serve some social aims like deterrence. What if you were
convinced by the evidence that, in fact, the death penalty does not deter,
does not protect life? Would you still insist on taking your pound of
For me to answer that question, sir, as for you to ask
it, presupposes that I accept at least the possibility that convincing proof
along this line could be offered.
Let's postulate that for a moment.
No, I can't postulate it. I honestly can't.
Well, let's postulate another set of facts, then. Let's
assume that I could demonstrate to you that the death penalty in the United
States in this century is imposed in an unfair manner, that more than half
of the people executed for murder in this century have been Black, and 90
percent of those executed for rape have been Black. Would that raise some
moral questions for you about the administration of the death penalty in
It might raise questions as to the equitability of the
administration. But it wouldn't lead to the conclusion that we should rather
Well, what if I could convince you that there is no way
of implementing the death penalty in this country at this time without that
kind of disparity and unfairness? Wouldn't that begin to raise questions for
you about the morality of the death penalty?
No, not necessarily. The traffic cop, for example,
simply because he can't stop every speeder, it doesn't mean that he
We're not talking about stopping in a random way. We're
talking about intentionally executing Black people, poor people, and people
without requisite intelligence and mental condition; that's the people who
are executed in this country. It's not the traffic cop randomly selecting
only a few. Doesn't that raise some moral questions for you?
Well, the first question I would want to know is are
these people who are sentenced to these punishments guilty of the crimes
they are charged of?
Let's assume that they're guilty and they all deserve to
die. But a vastly larger number of people who are equally guilty and equally
deserving of death don't die because of our policies. Is there not something
unfair about that?
Even if there is, the conclusion is not that we should
not punish anybody in this way.
No, no, no. Not that we shouldn't punish anybody. We
should seek a method of punishment ...
The conclusion would be rather to make the punishment
more evenhanded. I agree there.
But what if we couldn't. What if we found that the death
penalty was uniquely capricious? How do you finally come down to it in the
crunch if you're given two alternatives: the unfair administration of the
death penalty or a penalty other than death?
Well, sir, as a man who deals especially in moral
philosophy, I, as a matter of principle, reject being forced to consider
only two extreme alternatives.
But history has proved those are the two alternatives
available to this country in this century. We have proved that we are
incapable of administering the death penalty with an even hand.
Well, I don't accept that that has been proved. And I
would, furthermore, reiterate the point I made on direct…
Well, what do you make of the statistics indicating that
90 percent of the people executed for rape are Black. Doesn't that suggest a
systematic inequality of application?
It may suggest that there is inequality of application,
not necessarily a deliberate or systematic inequality.
What about if it's inherent in the system?
I would also want to know the proportion of Blacks to
Whites or whatever other minorities involved who commit these crimes.
Well, you're not suggesting that 90 percent of the rapes
in the United States are committed by Blacks, are you? The statistics
certainly don't support that.
I'm not suggesting anything about the statistics, sir.
But I am suggesting that you cannot demonstrate a conclusion of this nature
by statistics alone.
Does the validity…
Gentlemen, I'm sorry, I have to break in. Mr.
Dershowitz, I'm sorry. Father Williams, thanks very much for being with us
on The Advocates. It's a pleasure to have you. All right, Mr. Rusher,
another witness, please.
I can only second Father Williams' observation that some
of those gaudy hypotheses certainly have not been proved and certainly not
proved here tonight. Let's hear from a man who has had experience and who
favors restoration of the death penalty precisely from the standpoint of a
law enforcement officer, the Honorable Robert Shevin.
Welcome to The Advocates, Attorney General Shevin.
Mr. Shevin is Attorney General of the state of Florida.
General Shevin, what do the Attorneys General of the states of the Union
think about restoration of the death penalty?
It's already been stated that at the meeting in San
Diego the National Association voted, I believe it was 32 to one, which is
rather overwhelming, in favor of allowing the death penalty as a possible
And what is your own personal view of the matter,
I believe that the death penalty ought to be re-imposed,
and I want to add here that I haven't always thought that way. As a matter
of fact, some 20 years ago, when I was a freshman in college, my father was
the victim of an armed robbery, very badly beaten, was in a coma for
approximately three months, and died as a result of those injuries. During
that time, and for many years thereafter, I did not support the death
penalty, notwithstanding what occurred to me and my family. As a matter of
fact, as a member of the Florida legislature, I very strongly felt a
question about its deterrent effect. But in the past six or seven years,
having been part of the law enforcement community, having seen that since
the death penalty has not been imposed in Florida since 1964, and we've had
a rise in murders during that time of approximately 100% over the last eight
years, it convinces me that you must have the availability of the death
penalty. It must be there as a part of the criminal justice system. It's not
a panacea, but I think it's a necessary tool.
What, in your opinion, would be the ideal law in this
I think, reading the Supreme Court decisions carefully,
we would surmise that a law that would impose the death penalty mandatorily
upon all those who commit certain specific offenses, the killing of a law
enforcement officer, killing of a prison guard, intentional killings during
the commission of violent felonies, during robberies, rapes, kidnapping,
contract killings, assassinations, multiple slayings, killing during
skyjacking. These are the ones where I think we could mandatorily apply it.
In the alternative, a law similar to what Florida has just passed, which
sets up standards whereby the judge and the jury can base the imposition of
the death penalty on reasonable standards of aggravation or mitigation,
aggravating standards such as the fact that the crime was particularly
heinous, atrocious, or cruel; a mitigating circumstance would be the age of
the defendant, or perhaps the fact that he drove the getaway car as opposed
to pulling the trigger; and these would be factors to take into account.
This, I think, would get away from the indiscriminate sentencing, the
unbridled discretion which the Supreme Court condemned this last year.
Attorney General Shevin, when you say, under your first
formulation, that it would be mandatorily imposed, what do you mean? That
the jury, if it found the person guilty, would not be able to recommend
Nor would, I gather, the judge be able to impose life as
opposed to the death penalty. Is that correct?
It would be the only sentence returnable upon a
conviction. I think it should be subject, however, to executive
That is to say, by a governor or some appropriate
And that would be the time for the considerations of
mercy that Father Williams was speaking of.
Does the death penalty, though, in fact, deter a killer?
What is your experience?
In my view, it does. Now, I agree that it doesn't deter
a barroom brawl, it doesn't deter a lovers' spat, it doesn't deter many of
your heat-of-passion crimes. However, what's to keep a robber or rapist or
kidnapper from killing and eliminating the only eye witness to the crime if
he knows that the punishment for killing that individual is no greater than
the punishment for committing the robbery, the rape, or the
Could you give us very quickly…
I think the obvious answer is that there is nothing to
Could you give us very quickly an illustration.
Yes. We had a case very recently . . .
It will have to be very brief, Attorney General.
a case involving a Mr. Wilson. Wilson, 10 years ago,
raped two women, left them alive. He feared the death penalty. This past
year, he raped one woman, robbed one man, killed them both because he no
longer had the fear of the imposition of the death penalty.
All right, let's turn to Mr. Dershowitz who, I suspect,
is going to ask you some very searching questions. Mr. Dershowitz.
Well, you've given us your view that the death penalty
deters murderers. Do you know which state has had the highest rate of
executions over the last 40 years?
I'm not certain. I would imagine, probably,
Georgia. Alabama was very high up there. Do you know
which state has had the highest murder rate over the same period?
I would imagine that some of these same states have
very high murder rates.
Georgia has the highest murder rate and also the
highest rate of execution. How about your own state? Do you know where it
ranked in the murder rate, while it was near the top of the list in
executions, while it was still executing people very regularly?
Florida has had a high murder rate, but we've had a
much higher murder rate since we've stopped using the death penalty.
Oh, I don't think that's true
In 1962, you were sixth in the country, you were fourth
in 1963, fifth in 1964, fourth in 1965, up to third in 1970, and you've
improved somewhat last year, back down to sixth in 1971. The death penalty
doesn't seem to have had any impact…
No. The number of murders has increased 100 percent
How has the population increased?
Oh, there's been a significant increase in the
population. That's why you can't compare one state with the others.
But you can . . .
That's why it's difficult to compare Michigan with
Florida or Maine and Texas. There's no comparison.
But are you aware that, in general, the states with the
highest number of executions, states such as South Carolina, Alabama,
Louisiana, Texas, and Mississippi, also have the most murders whereas
abolitionist states, Wisconsin, Minnesota, Rhode Island, have the fewest
murders, about a tenth as many as Georgia and Florida? There must be some
I think that some of those are figures are sound, and
I've studied them carefully, and I can assure you that I've taken all of
those into consideration. But I still feel that there ought to be the
availability of this penalty for very serious crimes,
Well, you say you feel. Now, you feel, for example,
that the death penalty is needed to deter certain kinds of crimes, say the
killing of a guard or the killing of a policeman.
Put feelings aside for a moment. Do you know of any
evidence that the rates of these crimes are any higher in abolitionist
states than in execution states?
I've given you evidence of one case in Florida. There
are many others. As a matter of fact, in our prison system, there was an
incident, I think it was 1962, where two inmates were executed for killing
prison guards and other inmates. For a period of some 10 years prior to
that, there had been a-bout l7 of these killings. No one had been
electrocuted. When the electrocutions occurred, for some three years
thereafter, there were none. In 1965» when the federal judge enjoined the
imposition of the death penalty, from that time until the present time,
there have been about 15 killings within the prison system. This is the kind
of evidence that, I think, speaks very clearly to the fact that it can be a
These are all anecdotes. The studies have unanimously
come to the conclusion, as Father Campion, the former editor of the Jesuit
magazine America, said, "The life of a police officer or prison guard is
slightly safer in the non-death penalty states than in the death penalty
I don't agree with that.
Those are the figures. Those are the statistics. Those
are not the feelings and the anecdotes. Now, you argue, also, that in the
absence of the death penalty, a person who has committed a crime punishable
by long imprisonment has nothing to lose by killing the witnesses. And you
gave us, again, one example. I confess I just don't understand that logic.
Doesn't the argument apply with equal force when there is capital
punishment? Where a criminal has killed one person, what does he have to
lose by killing again? Indeed, isn't your argument even more compelling when
the death penalty exists? A person who already faces execution really does
have very little to lose by killing again.
Well, but if that person is executed, then he can't
kill again, can he? It serves as a very significant deterrent for that
Well, for that individual, we can have equally
effective deterrence by putting him in jail for long periods of time, can't
No, not when he can be released on parole in six,
seven, or eight years.
Can you tell us of a single case of a person released
after six, seven, or eight years on a charge of first degree murder who has
ever murdered again.
Oh, yes. There are several cases.
We've had at least half a dozen cases in the state of
Then you have a very bad parole board. They are not
obligated to let these people out.
In deference to the parole board, I think they are as
good as any of the other parole commissions throughout the country. The fact
is that prisons are overpopulated. There's a continual push to get people
out of the system. . .
And you think the death penalty is going to solve the
population problem of prisons.
No, no, no. I've never suggested that. I've never
suggested that. I am saying that the death penalty is a necessary ingredient
in the system. I've never said it's a panacea.
Well, let's talk about the death penalty recently
enacted in your state. As I understand the statute, which I've read, it
would permit the imposition of the death penalty on an 18-year-old kid who
gives some heroin to a friend, if the friend then accidently dies of an
overdose, or on a person who accidently kills somebody while lighting an
unlawful fire, or on a person whose gun accidently goes off in the course of
a robbery or a burglary. Is that correct?
Some of those are among the issues that are covered.
And do you think the Supreme Court would sustain the
imposition of the death penalty in those cases?
I'm not certain about the heroin situation. I think
that that was one that was amended on the floor. It was not suggested by any
of the legislative committees. I think the others that you've mentioned -
killing during the commission of a felony, yes; premeditated murder…
Accidental killing during a felony is one of
No, the accidental killing is not included in the
It says, in fact, I've read the statute . . .
The word accidental is not.
No, it doesn't say accidental . . .
..it says any death perpetrated in the course of a
felony. That's the conventional felony murder rule which includes accidental
deaths. It includes the typical death of a person who walks into the bank,
falls down, accidently shots the gun, and somebody is killed. You've
executed people in your state for that crime.
That's correct, because you assume the natural
consequences of your acts.
So accidental death . . .
I don't know. In that instance, as to accidental
deaths, I have question whether the Court would sustain it. We have,
however, many other provisions of the law which I think the Court will
One last brief question, please.
Well, let's turn to the mandatory death penalty.
…which you propose, too. What about the recent case
where a hoodlum had threatened to break the legs of somebody's child. And
that person, then, intentionally killed the hoodlum. Would you want to see
Well, in that case, I think there would certainly be
No, we're talking about the mandatory penalty.
Yes, I understand that, but you've got other factors.
There may be justifiable homicide in a case like that.
Let's assume there is not. We would not have
Well, it may very well be. If he can prove that he was
under fear of his legs being broken, and he killed in order to defend his
legs, that's justifiable homicide.
Let's assume he came within the statute. Would you want
to see him executed under a mandatory statute?
I would like to see a mandatory death sentence applied
to individuals who wantonly take human life.
On that note, gentlemen, Attorney General Shevin, your
time is up. Thank you very much for being with us. Mr. Rusher.
In closing, I want to call your attention to one little
tactic Mr. Dershowitz is using. He dares not talk a-bout the rise in the
murder rate in the United States as a whole since the death penalty ceased
to be applied generally here. He very carefully talks about Texas versus
Maine. The truth of the matter is, and it is a matter of cultural life style
as much as anything else, that it is more dangerous to live in Texas than it
is in Maine, and they have different individual responses to the death
penalty. Keep your eye on the ball, which is the overall effect of the loss
of the death penalty, and it has been a straight up rise in the murder
Mr. Rusher, thank you. For those of you at home who may
have joined us late, we have been debating the issue of capital punishment
and, specifically, whether or not the states should restore the death
penalty. Mr. Rusher and his witnesses have been supporting that proposition,
and now we turn to Mr. Dershowitz who is on the other side of the case. Mr.
There has, of course, been an increase in crime around
the United States, but I defy anyone to demonstrate, logically or
empirically, that that increase in crime is in any way related to the death
penalty which was never imposed on more than just a handful of poorly and
discriminatorily selected people in this country at any time. We will show
you tonight that the only thing definitely accomplished by imposing the
death penalty is that one more human life is taken in a world that has
already taken too many lives. The judicial killing has finally come to an
end in this country. Let us not rush to turn back the clock on life.
The death penalty is not needed to prevent the convicted
murderer from killing again. Paroled murderers commit fewer crimes than any
other category of serious criminals, and those who remain dangerous are
simply not paroled. As the English Royal Commission reported after an
exhaustive study, not an anecdote, "Cases of murder committed by persons
pardoned from the death penalty are rare if not almost unknown."
Nor is the death penalty needed to deter serious crimes.as
demonstrated by the uncontested fact that the rates of murder, killing of
police and killing of prison guards, have always been considerably lower in
states that abolished capital punishment than in those that retained it.
Indeed there is convincing evidence, and we will review it tonight, that the
death penalty, especially if it is made mandatory, may actually increase
crime by producing more acquittals and more deadlocked juries in cases where
the defendant is guilty but where some jurors conclude that he undeserving
Finally, considerations of vengeance and retribution do
not require execution. The living death of long imprisonment in the typical
state prison is punishment enough for any crime. To tell you why the death
penalty does not contribute to the effective administration of justice, I
call on Shane Creamer.
Welcome to The Advocates, Mr. Creamer. Nice to have you
Mr. Creamer is the head of the country's largest
Attorney General's office and is the Attorney General of the state of
Pennsylvania. Does capital punishment aid in law enforcement?
From my experience of about 12 years in law
enforcement, I really don't think it does. Law enforcement officers
frequently think it does. But I think that if you look at the statistics, if
you look at what really happens in America, that people are not deterred by
capital punishment. I think that it really diverts the American public from
where the real problems in their public safety are. If we want to be safer
in this country, I don't think we can rely on capital punishment. I think
that we've got to do something about poverty, which is where most of the
crimes, particularly crimes of violence, are coming from. I think that we've
got to do something about alcoholism because that's a high factor in all the
men that I've talked to or have been on death row or have been in jail for
murder. I think that we've got to do something about drug addiction. But
even more important, or equally important with these factors, we've got to
do something about the criminal justice system itself. We have a crime
crisis that's unprecedented in America as has been discussed here tonight.
And yet 83 percent of the prosecutors in America are part-time. Law
enforcement officers, a large, significant number of them are part-time;
most are untrained or undertrained although they're really dedicated people.
In Pennsylvania, you've got to have a license to be a barber, but there's no
requirement at all for training or education to be a policeman.
How has capital punishment been enforced in the United
States? Has it been done fairly?
Well, I think everyone would agree, and it's been
agreed-here tonight, that the Supreme Court has taken judicial notice that
it's been administered very unfairly, horribly; that, in effect, it's
fallen. There have been 50,000 capital cases since 1930, and about 3300 have
been killed. And of those 3300, they have many things in common. One is that
they've been poor. They've been uneducated. Many have been Blacks; far too
many have been Blacks. As you pointed out, 50 percent since 1930 of the men
and women who've been executed in this country have been Black, far out of
proportion to 10 percent of the population.
As the official who is in charge of the correctional
system in your state, do you really think the death penalty is needed to
deter crimes and especially murders against guards and policemen?
I don't believe it has. I've looked at Father Campion's
study. I've looked at Thurston Sellin's study from the University of
Pennsylvania. And they checked the data, the hard facts about whether or not
it is a deterrent; and, as you said a little bit earlier, it's quite clear
from their studies, and they were scientific studies, that there is little
difference in the death rate either generally across the board or with
officers killed in the line of duty or guards killed in the line of duty,
but it's a little bit lower in the states that do not have capital
Do you think capital punishment is justified in any
I really don't think it is justified. We've had a
thousand years to deal with the death sentence and death penalty. It hasn't
worked in a thousand years. We've had all kinds of experiments. At one time,
in 1810 or so, there were something like 223 capital offenses. I don't think
it's justifiable for any crime because I think it's very hard if not
impossible to show that there is a necessity to take a human life even if
someone has committed a horrible crime. Jefferson, Blackstone, many legal
scholars have said that for government to take extreme measures, extreme
steps, they've got to have necessity or purpose or something to justify what
they're doing. And I don't think it's justifiable in this country to take
lives when we can use other alternatives such as incarceration and the use
of medical sciences to protect society in a far more meaningful way.
.How would you deal with a dangerous offender?
A brief answer, please, Attorney General.
I would deal with dangerous offenders; I would remove
them from society. I would be sure that they wouldn't get back into society
at any time where there is any chance that they would hurt the offender, but
I see no reason, no sane reason to kill them.
Attorney General Creamer, it's not often that
prosecutor are cross examined, but on The Advocates they are, and Mr. Rusher
is going to do that now, Mr. Rusher.
That's very unfair. You turn the tables.
General Creamer, let me see, you are unalterably
opposed to the death penalty under any circumstances whatsoever,
Perhaps I misread the Newsweek for December 4, which
indicated that you were supporting, though, a bill in Pennsylvania which
would require the death penalties to be reviewed by a special board and that
a spokesman of yours, as I understood the article, said that such a bill
would be upheld by a six to three majority of the Supreme Court.
I didn't say it, and I don't believe any representative
of mine said it. If he or she did, I'll check it when I go back, and he may
not be there,
In any case, Newsweek was...
…erroneous in that particular thing.
All right. Tell me, in the matter of paroled killers,
is it true that they don't kill again.
I think it is. I've checked very diligently in
Pennsylvania, and I think in the last 41 years, I know of no case where
they've killed again in Pennsylvania.
Well now, that's very strange, General, because I have
a study which involves 64 paroled murderers in Pennsylvania between the
years of 1946 and '56 - 64. Would you care to guess how many of those were
subsequently convicted of a second murder?
No, I have no idea.
.You have just said that none at all were, I
That was my understanding, yes.
Well, may I correct your understanding, sir. Five of
those paroled killers were convicted a second time for another murder. Does
that change your mind?
No, I'd like to know where you got that
Yes, it was a 1959 study, and I will try to have my
researcher get you the title of it before the end of the broadcast.
Didn't you say that they were paroled during the
1960's, and the study is in 1959?
They were paroled from between 1946 and ‘56 in
Researcher: Pennsylvania Board of Pardons.
The Pennsylvania Board of Pardons is the source of the
I'm a member of that board, and I know of no
publication by the Board of Pardons to that effect.
Maybe you should attend more meetings.
Maybe they got it out of Newsweek.
I must say, General, there are getting to be an awful
lot of people mistaken but you. Tell me, how long is the average convicted
murderer actually in prison in Pennsylvania?
Seventeen to 18 years.
Seventeen to 18 years. And, in your opinion, that's
In my opinion, it's enough for some offenders, not
enough for others, too much for some, as well.
In the case of California, it's 14 years, isn't
It's 10 years nationally, I believe, and I think it's
five years in Florida, but I could be corrected.
And Charlie Manson will be eligible for parole, won't
he, in about six years, now?
No one in Pennsylvania would be eligible for parole at
all. A life sentence is a life sentence unless it's commuted. I assume the
same is true in California.
No, no, it isn't, unfortunately, true in California.
Charles Manson, once his sentence was commuted by the decision of the
Supreme Court of California from death to life imprisonment, became
eligible, like any other life prisoner, for parole within seven years,
I assume if he's a dangerous person, he will not be
put-into society. He will go to a mental institution.
Who's going to decide whether, in seven years, he's a
dangerous person? Some psychiatrist?
I beg your pardon.
Who is going to decide, in seven years, whether he's a
I think many disciplines will have to work on that
I would hope so, at any rate. Tell me, in Pennsylvania,
there were 265 murders, as I understand it, in 1963 when the state had a
death penalty. And in the first year of your administration as Attorney
General, 1971, there were 729. Why do you think that increase?
I think that crimes of violence…
It wasn't population, by the way. The state of
Pennsylvania hasn't tripled in the last 10 years.
That's quite true. Twelve million. I don't know if your
figures are correct or not.
The figures are….Maybe somebody else is mistaken.
They haven't been tonight too much. But I think that
the reasons that we're getting such tremendous increases in crimes and
violence in America is the increase of poverty, the increase of impacting
people in high density areas in the cities. And I think that these are the
And the death penalty had nothing to do with it?
I think the death penalty had absolutely nothing to do
with it, and I think if you look at the studies by people who know what
they're doing, scientifically, criminologically, that it's quite clear that
it has nothing to do with it,
Unfortunately, you don't like the studies I've looked
at. Let me try another one.
You can't find one.
You alleged, for example, that capital punishment is
used against the Blacks and poor, discriminating against the Blacks and the
No question about that. Even…
Well, I don't know. Are you familiar with Marvin
Wolfgang's study entitled, "A Sociological Analysis of Criminal Homicide,"
concentrating on the city of Philadelphia?
And do you agree with it?
Well, it had a figure of 36 percent, but it was done
May I quote and say, Mr. Wolfgang says that Blacks and
males, generally, commit more crimes and murders proportionately than Whites
or women but that, and I'm quoting verbatim, "a charge of unjust race or sex
discrimination in courts would not necessarily be correct."
That study was done some years ago. He said, at that
time, that Blacks committed three to six times as much crime as Whites in
violence, and I think that the statistics we've heard here tonight, like
rape, where 90 percent of the 455 people killed in the last 30 years were
Black, clearly demonstrates after that study that it has been a racist
application of the death penalty.
Mr. Dershowitz did not mention, however, that the rate
of rape among Blacks is 12 times that among Whites, and, incidentally, who
are the victims of Black crimes?
Blacks. Right. Tell me this, was the Stanford…
Mr. Rusher, when was the Wolfgang study done, so we
1961. O.K., go ahead.
And the Stanford Law Review was wrong also in its June
1969 issue, when it stated that it had studied all of the murder cases in
California between 1958 and 1966 and found no evidence of racial
discrimination in execution?
Unbelievably wrong, I would say.
Unbelievably wrong, you think.
The Supreme Court of the United States has found the
Is there anybody right with you? I guess the ones that
you mentioned, Campion and the other studies.
We're going to have a short answer for that one, and
we'll have to close at that point.
I know that there are thousands who are right with me
on this issue.
Thank you, gentlemen, very, very much. Attorney General
Creamer, thanks for being with us.
Mr. Dershowitz, another witness, please.
The studies we've heard referred to tonight have more
holes in them than a Swiss cheese. The rape rate among Blacks is not 12
times higher than the rape rate among Whites. There have been some arguments
that possibly the conviction rate is that much higher, but certainly not the
rate of criminality. The study involving 64 paroled murderers has no
relevance to capital punishment because it didn't deal with capital
murderers. It dealt primarily with second-degree murderers who would not get
capital punishment anyway. Here to show us tonight that not only the
restoration of the death penalty would not reduce crime but there is also
some evidence that it might actually increase crime, I would like to
introduce Dr. L. J. West.
Welcome to The Advocates, Dr. West. Nice to have you
Dr. West is a Professor of Psychiatry at UCLA. What has
been your personal experience with the death penalty?
Well, I went through World War II and medical school
and psychiatric training and was perfectly content with the death penalty.
And then, on one day in August of 1952, I participated in an execution in
Iowa. We hanged a fellow there for murder. And as medical examiner, I stood
at the end of a rope and listen to his heart slow down and stop. It took
about 12£ minutes. That converted me to a student of this problem, and I've
studied it carefully for 20 years, and I'm now absolutely opposed to the
death penalty for any reason. It's clear to me that not only, as we've
heard, that it's inequitably and unfairly applied and that it brings with it
many abuses and obstructions to penal reform, but I believe also that it's
wasteful and it's certainly far more expensive than we need to afford.
In your own experience, does the death penalty
sometimes actually incite crimes?
Well, I have a series of careful studies of people
who've committed homicide for only one reason and that is to bring the death
penalty upon themselves. I got into this after studying the works of
Professor Sellin who compared matched groups not between Wisconsin, where I
grew up, and Texas but between Wisconsin and neighboring communities in
Illinois. He compared Michigan and Ohio, comparable communities. There was
always a slight edge, more homicides in the states that had the death
penalty. In the last 20 years, I've actually interviewed a number of
murderers who committed homicide in order to get themselves executed.
They're abnormal, but that doesn't protect their victims. It's my firm
belief that the death penalty produces far more harm than it prevents.
Dr. West, in response to a earlier question by Mr.
Dershowitz, you said that it was expensive. What did you mean by that?
I mean that a trial, like the Manson trial, costs the
state of California a million dollars. Many of the capital trials are
endlessly prolonged with numerous appeals, and so on, that cost a tremendous
amount of money, simply because the death penalty is involved. When there is
no death penalty, I think you're much more likely to get not only a quick
resolution but probably more likely to get an accurate and fair conviction
of first degree murder.
Speaking of the Mansons, we've heard scare tactics
tonight designed to suggest to the audience that Manson will actually be
released in seven or eight years. How can we deal with somebody as dangerous
as Manson without executing him?
Well, in spite of the tone of voice that I've heard the
word psychiatry utilized tonight, in point of fact, we in psychiatry take
care of the most dangerous people of all, and we do it all the time. These
are the criminally insane, far more dangerous than the average person or any
person who is allowed to go to execution because you can't execute someone
who's insane. If he's insane, he has to go to a special place, and the
burden, then, is upon us to cure him, restore him to sanity, so he will
comprehend what's happening to him while he's being executed. And that's
very important. But there are many ways to manage and handle and safely take
care of viciously dangerous criminally insane people, and every state has
institutions for such people.
All right, Dr. West, let's turn to Mr. Rusher who may
be the person who was talking about psychiatrists a little earlier, and
let's see what he has to say now. Mr. Rusher.
And, by the way, if Mr. Dershowitz would like to dip
into the article by Mr. MacDonald entitled, "Rape Offenders and their
Victims," in the book that is sitting on his desk over there by Hugo Bedau,
he will find the statistics on which I relied and which astonished him
If you'll give me the page, I'll do that.
Do we have to do that too? Look in the index.
We're going to have to bring both of you back for
another encounter at some later date on this subject. All right, Mr. Rusher,
ask some questions of Dr. West.
I can sympathize with your feelings as you watched an
execution. Were you, by any chance, the medical examiner who examined the
bodies of Sharon Tate and Charlie Manson's other four victims?
You will recall that Sharon Tate was pregnant and that,
I think, all of the victims had some 30 or 40 stab wounds in them.
Gruesome murders, indeed.
Would you consider the gruesomeness of that spectacle a
logical argument in favor of the death penalty?
Well, then, why do you consider the difficulties that
you observed when a man was hanging as a logical argument against it?
I didn't say it was a logical argument…
Why did you use it?
I used it as a description of the onset of my study of
this which v/as based upon me as a physician participating in a procedure
when a helpless captive was exterminated.
I suggest to you that you used it as an emotional
device. Or perhaps Professor Dershowitz suggested that you do so.
Until you've been at a hanging, sir, don't put down the
emotionality of it.
I'm not putting down the emotionality of it nor of the
crimes that were committed by Mr. Manson. You say that there are abnormal
people who actually want to be put to death, and I have no doubt you're
correct about that, and they're foiled if we don't have the death penalty„
Would it be unreasonable to assume that there are also other abnormal people
who want to be put away in prison for long terms? There would be some,
I'm sure there are.
Should we foil them by abolishing prisons?
I don't think it's necessary to kill them.
I didn't say it was. They don't want to be killed. They
want to be put away in prison. If you can foil a man who wants to be
executed by abolishing the death penalty, then won't you, logically, foil
people who want to go in prison by abolishing prisons?
Oh, you've missed the point, sir. I'm only concerned
about protecting society, . . .
…and it's the victim that I'm looking at. If a man
can't get what he wants by killing somebody, and that's going to have him
kill fewer people, I'd be prepared to alter the system to protect those
Let's take the concrete case. In New York City
recently, just this last summer, three men held up a bank and held seven
people hostage for nine hours until the police killed one robber and jumped
the other two. During those hours, one of the robbers said, according to the
New York Times for August 23, and I'm quoting verbatim what the robber said
when he was holding the seven hostages, quote, . . .
That wasn't Newsweek. Mr. Rusher. It was the New York
No, sir. I'm not sure it's a much better source, but
it's the only one I've got. "The Supreme Court," he said, "will let me get
away with this. There's no death penalty. It's ridiculous. I can shoot
everyone here, then throw my gun down and walk out, and they can't put me in
the electric chair." What should the police have replied to this man, in
Well, I don't think the police should hold
conversations with homicidal gunmen.
Nor do I think that . . .
What would a psychiatrist have said to him, or don't
you talk to them either?
What I'd have said to him, after he was safely
captured, is irrelevant to what I'm saying tonight about the system that
encourages dangerous criminals to commit murder.
Very well, tell me, sir, what conditions should a man
who is in prison for life for murder be living under? Can you describe
briefly what kind? Would they be harsh, severe conditions?
I don't think it's necessary for them to be harsh and
He might have a television set, for example.
The Birdman of Alcatraz was a two-time killer, the
second time, killing a guard in prison. He barely escaped being executed for
that, and yet, during the many years that he lived in solitary confinement
until he died, he showed that even a dangerous person like that has some
value because human life has value.
And what if he had killed yet another guard? What would
you have done? Taken away his birds?
Well, obviously, the federal penal system found that it
was possible to keep him from killing anybody else, and I submit, sir,
Not necessarily. He may just not have decided to do
I submit to you that it is possible to confine people
and keep them from killing guards, fellow prisoners, or even their attending
Would you oppose the death penalty for a hired killer
like those in Murder, Inc.?
I oppose the death penalty for anybody under any
And you would oppose the death penalty for the two
killers in the famous case that was put on the screen in In Cold
And would you try to rehabilitate such men, put them in
No, sir. I'd keep them safely put away, but I would not
act, as they have acted, killing people in cold blood.
And, in your opinion, does a prison sentence, a long
prison sentence, deter a potential killer as effectively as the death
penalty, or more effectively?
Well, if a person is kept confined under proper
conditions, he is unable to kill anybody.
And going back to Newsweek, then, if so, why did
Newsweek report that when the Supreme Court barred the death penalty, one of
the men on death row in a Florida prison said, "We laughed, we whooped, we
hollered and shook the doors."
I think they were very relieved, sir, to learn that
they were not going to die after spending years on death row.
So do I, and I think I understand why, and I wish you
did. I have no further questions.
Thank you, Mr. Rusher, and thank you, Dr. West. All
right, Mr. Dershowitz.
As a matter of fact, that insane man in New York
referred to by Mr. Rusher was wrong. Shortly after making that statement, he
was shot dead by the police in the streets of New York.
That's known as the death penalty.
Now, if any of the studies which had been stated by had
been valid, you can be sure the dissenting opinions in the Supreme Court
would have picked up those studies and cited them. They did not. Every
member of the Supreme Court, majority and minority, agreed that as a
legislative matter the death penalty should be abolished. Listen, for
example, to Mr. Justice Blackman in dissent: "I yield to no one in the depth
of my distaste, antipathy, and abhorrence for the death penalty. It serves
no useful function. Were I a legislator, I would vote against the death
penalty for the policy reasons that the Court adopts." That's the reality of
the death penalty in the United States today.
Thank you, Mr. Dershowitz, and it's now time for you to
summarize your case.
We have heard tonight from a man who lost a close
relative to a brutal murder. No one can help but have compassion for the
victims of- such despicable crimes and for their relatives. I am concerned
with the victims. If the execution of the murderer could, by some miracle,
restore the lives of the victims, then there would be a compelling case for
judicial execution. But, as Senator Edward Kennedy wrote when he was asked
for the views of the Kennedy family on whether Sirhan Sirhan should be
killed, "My brother was a man of love and sentiment and compassion. He would
not have wanted his death to be the cause for the taking of another life."
He urged the court, and I urge you, to come out, as he put it, on the side
of compassion, mercy, and God's gift of life, itself.
Thank you, Mr. Dershowitz. Mr. Rusher, your summary,
Let me say first, and briefly, it is flatly untrue that
all members of the Supreme Court, or even a majority of them, oppose the
death penalty in all circumstances.
The movement to restore and reform the death penalty for
certain specific crimes is a logical and necessary step in the great
movement of the American people away from the sick and sentimental
permissiveness of the 1960's and back to a rational social structure in
which each of us is held responsible for his actions. As Father Williams
pointed out, we are hardly demonstrating a very profound respect for human
life if we punish the man who takes one in the same way we would punish a
robber. And as Attorney General Shevin made quite clear, there is and always
has been and always will be a direct connection between the number of
murders that are committed and the number of murderers who are put to death
for committing them.
Let us be sensible. Let us be fair. But let us also at
long last be firm. Let us warn the killers in our midst that there is going
to be more to murder than getting your picture in the paper and having some
Harvard psychiatrist cry over your deprived childhood. I urge you most
strongly to vote yes.
Thank you, Mr. Rusher. We've now reached that point in
our program where you here in our audience at Faneuil Hall and those of you
at home have an opportunity to get involved and to let us know how you feel
on this issue. I think it's very clear from the lively debate we've had this
evening that this is a hotly contested issue. And because of the Supreme
Court decision, every state legislature will have to face this question.
Should your state restore the death penalty? Write us on a post card or a
letter. Send us your yes or no vote to The Advocates, Box 1973, Boston
02134. Your views are important, and we'll tabulate them and make them known
to the members of your state legislature, to the Congress, and to other
persons concerned with this issue. So those of you here in Faneuil Hall with
us should mark your ballots and please drop them in the ballot boxes which
you will find at the door as you leave. And those of you at home, please
write us and tell us how you feel about this most important issue. That
address again, The Advocates, Box 1973, Boston 02134.
Now, I'd like to report to you on how you voted on some of
the questions which we've been debating on The Advocates during the past
several weeks. On the first show following our election series, we debated
the question, "Would justice be better served if juries didn't have to be
unanimous to convict someone?" Of the more than 1300 letters we received, 48
percent said yes, 52 percent said no. The following week, we debated the
question, "Should the news media refrain from publishing candidate
preference polls?" Of the nearly 1000 letters received,
75 percent said yes, and 25 percent said no. And finally,
many of you may have watched The Advocates' special appearance on the Dick
Cavett show when we debated the legalization of prostitution. Of the 7800
letters received as a result of that program, 63 percent favored legalizing
the world's oldest profession, and 37 percent said no.
And now, let's look ahead to next week.
And now, with thanks to our advocates and to their
distinguished witnesses and to you, our audience, we conclude tonight's
The Advocates, as a program, takes no position on the
issue debated tonight. Our job is to help you understand both sides more