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 to order.

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 no.

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 crime.

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 Williams.

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 against.

But aren't we, as it is sometimes said, really brutalizing both ourselves and the criminal when we deliberately put someone to death?

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?

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?

Yes.

All right, Mr. Dershowitz, it's time for you to ask some questions.

Mercy may very well require retribution, but it surely doesn't require the death penalty, does it? One could have mercy without a death penalty.

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 proportionate?

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 punishment…

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 killing?

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 kill?

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 softly.

I believe that there is a growing lack of sensitivity on the part of many nations that are, in other respects, perhaps quite civilized,

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 flesh?

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 this country?

It might raise questions as to the equitability of the administration. But it wouldn't lead to the conclusion that we should rather not punish.

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 shouldn't anybody.

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 state penalty.

And what is your own personal view of the matter, sir?

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 area, sir?

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 mercy?

Yes.

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 clemency.

That is to say, by a governor or some appropriate body.

Yes.

And that would be the time for the considerations of mercy that Father Williams was speaking of.

That's correct.

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 kidnapping…

Could you give us very quickly…

I think the obvious answer is that there is nothing to deter him.

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, Alabama.

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

It is 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 since 1964.

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 relationship.

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.

Uh huh.

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 significant deterrent.

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 states.

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 individual.

Well, for that individual, we can have equally effective deterrence by putting him in jail for long periods of time, can't we?

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.

Six - seven?

We've had at least half a dozen cases in the state of Florida.

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. Correct.

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 your…

No, the accidental killing is not included in the Florida statute.

It says, in fact, I've read the statute . . .

The word accidental is not.

No, it doesn't say accidental . . .

Yes.

..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 sustain.

One last brief question, please.

Well, let's turn to the mandatory death penalty.

Yes.

…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 him executed?

Well, in that case, I think there would certainly be mitigation...

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 justifiable…

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 rate.

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. Dershowitz.

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 of death.

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 with us.

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 punishment.

Do you think capital punishment is justified in any case?

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.

Thank you.

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,

Yes.

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...

It's incorrect.

…erroneous in that particular thing.

That's right.

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 believe.

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 information?

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 Pennsylvania.

Researcher: Pennsylvania Board of Pardons.

The Pennsylvania Board of Pardons is the source of the information,

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 enough.

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?

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, yes.

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 dangerous person?

I think many disciplines will have to work on that problem.

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 primary causes.

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 poor.

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?

Yes.

And do you agree with it?

Well, it had a figure of 36 percent, but it was done years ago.

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.

Blacks. Right. Tell me this, was the Stanford…

Mr. Rusher, when was the Wolfgang study done, so we can…

1961.

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 opposite.

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.

All right.

Thank you, gentlemen, very, very much. Attorney General Creamer, thanks for being with us.

Thank you.

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 with us.

Thank 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 so.

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?

No, sir.

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?

No, not a bit.

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, wouldn't there?

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, . . .

So am I.

…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 people.

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 Times, right?

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 your opinion?

Well, I don't think the police should hold conversations with homicidal gunmen.

Neither do I.

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 severe.

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, that…

Not necessarily. He may just not have decided to do it.

I submit to you that it is possible to confine people and keep them from killing guards, fellow prisoners, or even their attending psychiatrists.

Would you oppose the death penalty for a hired killer like those in Murder, Inc.?

I oppose the death penalty for anybody under any circumstances.

And you would oppose the death penalty for the two killers in the famous case that was put on the screen in In Cold Blood?

In all cases.

And would you try to rehabilitate such men, put them in foster homes?

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, please.

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 debate.

The Advocates, as a program, takes no position on the issue debated tonight. Our job is to help you understand both sides more clearly.