Capital Punishment: The Barbaric Anachronism

The Lord Chief Justice wondered if the death penalty might not be a trifle severe in view of the prisoner's age. The trial judge argued against mercy on the grounds that William York's punishment would be an example deterring others from a life of crime. So William York was hanged for stealing a shilling from the man to whom he was apprenticed. He was ten years old. The place was London. The time was 1748.

Britain has come a long way along the road to civilization in the two centuries since the hanging of William York. In October 1965, not only the House of Commons but the usually stuffy House of Lords, with a surprising two-to-one majority, voted to abolish the death penalty for a test period of five years, which will probably prove permanent. This enlightened legislation, although still behind most of Western Europe's, is far ahead of the United States', and marks a definite global trend.

Although as governor of Ohio I reluctantly allowed six men to die in the electric chair in accordance with my oath of office, I am totally opposed to the death penalty. I am thoroughly convinced that capital punishment is a relic of barbarism, that it is immoral, that it usurps for society the exclusive privilege of natural laws, that it is futile because it does not deter the homicidal criminal, and its finality precludes any possibility of correcting an error.

The eye-for-an-eye, life-for-a-life concept of penology is obviously based on the degrading principle that society, in punishing the criminal, is seeking revenge rather than justice. The strong strain of sadism that runs through a vindictive society's clamor for a wrongdoer's blood is evident in the fact that until rather late in this century (in the Western world, at least) the execution of the condemned has been something of a spectator sport.

The executioners of the Far East have been far more inventive in their spectacular cruelty than any 20th Century Western country, with the possible exception of Nazi Germany. The Chinese, of course, have long been recognized as leaders in the field, with their boiling in oil, leisurely dismemberment (The Hundred Slices) and similar refinements. The Mogul emperors of India, however, should be recognized for their ingenuity in dispatching criminals as well as for their building of such monuments as the Taj Mahal. Impalement, for instance, was very popular (except with the victims) in 17th Century Delhi.

The man to be put to death by impalement (possibly for stealing a mango or a handful of roasted chick-peas from the Emperor Aurangzeb's palace kitchens) was paraded naked past the eager spectators to the killing grounds, where a sharpened stake of heat-tempered bamboo had been erected. Two men, each holding one of the prisoner's bound arms, would lift him clear of the ground while a third separated the buttocks so that when the culprit was lowered briskly, the bamboo lance would penetrate the rectum as far as the sigmoid flexure. The executioners could then step back and join the delighted crowd in watching the dance of death as the screaming wretch writhed and pirouetted on his tiptoes in an effort to stay the inexorable progress of the murderous bamboo through his vitals. When sheer exhaustion and loss of blood finally forced the thief to his knees, the point of the bamboo stake pierced his heart and the show was over. Justice—or something—had been done.

The early Siamese did pretty well in the way of spectacular capital punishment by throwing their criminals to the crocodiles. This possibly gave the Romans the idea of throwing Christians to the lions, although the Romans got better exposure by building huge stadia for their lionization carnivals. This may have been an improvement over the earlier Roman form of capital punishment by crucifixion (in itself an improvement over the crude Jewish practice of lapidation, with no strictures as to who was to throw the first stone), but it was a failure as a deterrent to the spread of Christianity.

The ancient Greeks, with their more temperate and philosophic civilization, did not feel it necessary to borrow from the annals of Oriental cruelty in exterminating their undesirables and nonconformists. A quiet cup of hemlock did away with the lawless and the contumacious without fuss, feathers or cheering crowds.

The Greek example, however, did not deter the rest of Europe from linking justice with sadism. Spain during the Inquisition made notable advances in the field of cruel and unusual punishment with the rack, the wheel, flaying alive and burning at the stake, although the popularity of auto-da-fé spread to other countries. Even today, although Spaniards have managed to transfer most of their hostilities to the brave bulls, the Franco government, perhaps out of sentimental longing for the good old days, still retains garroting as an official form of capital punishment. Only a few years ago—August 17, 1963, to be exact—two men found guilty of terrorist bombing were garroted in Madrid. Awakened at dawn to be fitted with adjustable steel collars, they were slowly strangled to death. The collars were tightened until eyes bulged and faces purpled, tightened still more until the windpipe was collapsed. The two men were then given the coup de gràce by the points of the tightening screws emerging cleverly from inside the backs of the collars to pierce the cervical (continued on page 134)Capital Punishment(continued from page 129) vertebrae and crush the spinal cord.

Decapitation, once a popular form of capital punishment throughout the world, is now used sparingly despite an attempt by the Nazis to revive it during their brief but memorable rule of Schrecklichkeit. It was originally done by hand—with scimitar or cleaver in the East, with broadsword or ax in the West. Punitive head chopping was legally automated, however, as early as the 18th Century. The guillotine came into use in the early years of the French Revolution. Curiously, this lethal instrument, which became a symbol of the Reign of Terror, was originally suggested as a humane method of obviating the suffering attendant to executing the death penalty. Dr. Joseph Guillotin, a professor of anatomy appalled by the bloody extravagances of the French Revolution, carried on a campaign to humanize necessary killing, but resented the fact that his name was attached to the killing machine which he did not invent. Actually, the first "guillotine" was devised by Dr. Antoine Louis, and was called, by contemporaries in his honor, a Louisette. It consisted—and still consists—of a trapezoidal knife weighing more than a hundred pounds, which drops ten feet between guiderails and slices on the bias through the neck of the condemned man who lies prone beneath it, his head immobilized by stock-like clamps. The severed head drops into a suitable container, while the body is rolled into a basket.

It was Dr. Guillotin's theory that this method of putting a man to death was the most compassionate, because the victim would feel nothing except perhaps a brief sensation of cold at the nape of his neck. Whether there is any intervening pain or the realization on the part of the severed head of its impossible position has never been confirmed or denied by any of the victims.

Executions by guillotine took place in a public square in Paris as late as 1939. The scaffolding and the weighted knife would be erected the night before, and although the accused died at dawn, there were always crowds on hand to be edified, if not deterred from crime, by the spectacle of the spurting carotid arteries, the ghastly surprised expression on the detached face, the reflex flopping of the headless body. Whether or not there was any appreciable deterrent effect, the grisly ritual is today privately performed behind the walls of La Santé prison on the Left Bank of the Seine.

Public hangings were abolished in England in 1868. At that time capital crimes numbered only a dozen, down from 200 in 1820. It is likely that the public spectacle was discontinued then because a royal commission had reported two years earlier that the death penalty, even when witnessed by potential criminals, was no deterrent. The commission's report found that of the 167 persons executed in 1866, 164 had previously watched a hanging. This is not surprising, as the public executions used to attract huge crowds, and the crowds would attract dozens of pickpockets intent on plying the very trade for which the center of attraction was being hanged.

Public hangings persisted in America beyond the cutoff date in England, particularly in the Far West. The more spectacular forms of legal brutality were not practiced, however, even in the earlier Colonial days. There were, of course, occasional unofficial and nonintegrated autos-da-fé in some of the deeper parts of our Deep South, a practice that has carried over well into this century. But even the witches of Salem were not burned at the stake; they were decently hanged.

Crimes calling for the death penalty, however, were almost as numerous in Colonial America as in contemporary England. In 1636 hanging was the penalty in the Massachusetts Bay colony for witchcraft, idolatry, blasphemy, assault in anger, murder, sodomy, buggery, statutory rape (the death penalty was optional for forcible rape), perjury in a capital case and rebellion. The Old Dominion of Virginia ranked the degree of criminality according to race, color and current condition of servitude. Seventy crimes were listed as capital for Negro slaves, but only five for whites.

It was inevitable that an emerging nation like the United States, aspiring to world leadership in science and invention and the practical application thereof, would sooner or later abandon hanging for a modern, efficient, scientific and more "humane" method of legal murder. In 1880 the state of New York abolished the gallows in favor of a newfangled "electric chair." Thirteen years later a man named Kemmler lost his court battle to have the new monster declared unconstitutional as "cruel and unusual punishment," and became the first man to be punished electrically for his misdeed—an ax murder. The contraption was a success technically, since it killed Kemmler, but the humanity of the experiment was doubtful. Either the machine misfunctioned or the executioner did something wrong. There was considerable searing of flesh and the human guinea pig apparently died in agony.

Techniques have been improved in the 70-odd years since, and it is now generally agreed that death by electrocution is practically painless. While pathologists still argue over the exact mechanics of death by electricity—some believe the heart muscles are paralyzed; others are just as certain that paralysis of the respiratory centers causes death by asphyxia—most of them concede that the victim loses consciousness almost instantly. The tremendous electrical surge raises the temperature of the body to the boiling point and sears the brain to insensibility in a fraction of a second. The jerking and writhing that nauseate witnesses are not signs of a death struggle but purely reflex reactions of the muscles to an electrical impulse.

An expert hanging is also supposed to extinguish consciousness at the end of the drop. The snap of the rope grown taut theoretically breaks the neck and severs the spinal cord. The frantic kicking, the jerking arms, the ejaculation of sperm in men, are all unconscious nervous reflexes. Of course there have been many bungled hangings—defective traps, ropes that broke, inexpert knots that merely choked the man to death. There is a record of an early English hanging of a half-starved female criminal who dropped through the trap and dangled at the end of the rope, eyes bulging with dread, because she was not heavy enough—she was a small 12-year-old girl—for the fall to break her neck. The hangman had to go down the 13 steps, grab her legs and add his weight to hers to carry out the sentence.

In 1921 the Nevada state legislature came up with the latest contribution to the fine art of killing criminals. It was not only scientific, quick and efficient; it introduced a new "humane" note: It would eliminate the torture of apprehension. Poison gas would be introduced without warning into the cell of the condemned man while he was asleep. He would die peacefully, and nobody's conscience need be disturbed by witnessing a death struggle. When a murderer named Gee Jon was sentenced to this new-style death three years later, it happily occurred to someone that the bars of Gee Jon's cell could hardly be expected to contain the lethal gas intended exclusively for Gee Jon's gentle extinction. Rather than risk exterminating the entire population of the penitentiary, therefore, penal authorities postponed the historic execution until a special gas chamber could be built.

Nine states besides Nevada now poison their capital criminals with gas. The best-known gas chamber of them all is California's, perhaps because Caryl Chessman died there after a legal fight that lasted 12 years. Chessman had a long record of charges against him, but the one for which he was finally executed was that of forcing a girl to move from one car to another at gunpoint. This is technically kidnaping in California and is punishable by death under (continued on page 186)Capital Punishment(continued from page 134) California's "Little Lindbergh Law."

Because there were many newsmen among the 60 witnesses come to San Quentin for Chessman's execution, millions read descriptions of how a man dies by inhaling poison gas. It is a death not much different, they found, from hanging or electrocution. Looking through glass panels of the hermetically sealed gas chamber, the reporters saw the doomed Chessman enter and without hesitation sit down in the death chair, watch without expression while his arms and legs were strapped down. A clutch of cyanide "eggs," poised above a tub of acid beneath the chair, was released by remote control. As the fumes rose to shroud the prisoner, his eyes bulged, his head jerked, he gagged and gasped as he seemed to be struggling against the straps. In two minutes his long jaw sagged and his body slumped.

According to medical men, the gaseous cyanide derivatives are neurotoxins that attack the nerve centers and paralyze the cardiac and respiratory functions at the first deep whiff. The signs of a desperate death struggle, apparently the symptoms of great suffering, are again nothing more than unconscious reflexes.

So?

What is the meaning of all this scientific progress that we in America have made in the centuries and centuries since the boiling in oil, the crucifixions and the hanging of little children? We have perhaps reduced the coefficient of suffering to within a fraction of a second of the instantaneous extinction of the guillotine, which the late Albert Camus described as "a crude surgery [without] any edifying character whatever." We have reduced our lust for public bloodletting to boxing (which is becoming more and more bloodless), auto racing and professional football. We no longer feed our wrongdoers to the crocodiles or invite VIPs to public hangings, as was the custom in Arizona, but we still kill our criminals in three quarters of our American states. We are far ahead of the rest of the world in the scientific technique of legal killing, but we are at least a century behind in the sociological, psychological, economic and humanitarian approach to the problem of crime and punishment.

Why do we still kill our killers? Do we imagine that we are doing justice, with no thought of vengeance? Do we think we are eradicating crime? Are we deluding ourselves that by snuffing out the lives of our misfits, our nitwits and our psychopathic personalities (who, our psychiatrists hasten to add, are not congenital psychopaths), we are creating a better world for ourselves? Do we really think that punishment will prevent crime, that killing murderers will prevent murder? Let us consider these points one by one.

Is capital punishment a matter of justice or revenge? Personally I do not consider class legislation of any kind true justice. In all my experience, I have never seen a murderer with enough money to hire top-drawer counsel condemned to death. The last time I visited death row at Ohio State Penitentiary in Columbus, the ten men there awaiting the electric chair had one thing in common: They were penniless. They had been defended by court-appointed attorneys, devoted men, all of them, although many had had no previous experience in criminal cases. But the professional gangsters, the shrewd racketeers and their paid gunmen did not have to depend on volunteers. Nor were they ever, in my experience, executed. It was only the poor, the illiterate, the foreigner, the Negro and the school dropout from a broken home who died in the chair.

Is it justice to try a man in the lynch-mob atmosphere of a community outraged by a series of atrocious crimes, where the police have been under pressure from an impatient public inflamed by a sensational press clamoring for quick retribution? Must a man die to avenge a crime to which he has been connected only by evidence viewed through the emotion-tinged spectacles of angry indignation?

As governor of Ohio I had the power to extend executive clemency in all cases except those of treason or impeachment. However, I had sworn to uphold the laws of the state, and the death penalty was still on the statute books. Unless I could find some mitigating circumstances or a possibility of the miscarriage of justice, I did not feel that I could extend mercy merely because I was personally opposed to capital punishment. By, in effect, singlehandedly repealing the death penalty when there was no question of a prisoner's guilt or responsibility, I would be inviting impeachment for violating my oath of office. I felt that I could fight more effectively for the abolition of capital punishment by staying in office rather than face impeachment.

Each time a capital case came to my gubernatorial desk for review, I thought of the tragic impossibility of correcting a mistake that could mean the execution of an innocent man. I remembered Clarence McKinney, convicted in Ohio of first-degree murder in the 1920s on the basis of circumstantial evidence, mistaken identity and a previous police record. While his case was being appealed, the real murderer confessed to the crime. Suppose McKinney had been put to death? Or the Larkman case in New York: If Governor Al Smith had not commuted Larkman's death sentence in 1927, would the actual culprit have confessed to the murder two years later? Or Tommy Bambrick, who died in the chair at Sing Sing while warden Thomas Mott Osborne was trying unsuccessfully to reach the governor of New York with news of last-minute evidence that had just come to light.

To avoid having another Tommy Bambrick on my conscience, I made myself constantly available to the penitentiary authorities on the night a man was to die, up to the moment the warden informed me that the case was out of my hands forever. Eight p.m. is the hour at which society takes the lives of capital criminals in Ohio, and the day leading up to that hour was always a dreadful one for me. As the time approached, I wanted to get away from everything and everybody. I could never reconcile myself to the idea that a man was going to die because I failed to exercise the god like power of life or death that was mine as long as I was governor—the power of executive clemency.

I would escape in my car to someplace where I could be alone at that awesome moment—a country lane under the stars, the solemn silence of some church, the impersonal darkness of a park. My driver understood my feelings, for he was a convicted murderer himself, a trusty. He would monitor the car radio, tuned to the wave length of the State Highway Patrol, which knew where to reach me instantly, until the message came through from the warden: "Detail completed."

My determination to preclude every possibility of an irrevocable error was so strong that I visited the Ohio penitentiary to interview personally the prisoners sentenced to die, often on the eve of the date set for their execution. With the proximity of death hovering over the penitentiary, I had a right to expect a moment of truth.

Twelve capital cases came to me from the Ohio Pardon and Parole Commission during my four-year term as governor. The Commission recommended for or against clemency. My decision usually, but not always, concurred. The six death sentences I commuted to life imprisonment fell into three general categories. Two were obvious inequities of justice—separate trials for the principals in the same felony murder (all participants in a felony during which someone is killed are, under Ohio law, equally guilty of first-degree murder) resulted in a death sentence for some, in one case the driver of the car, and life for the trigger man or mastermind. The only way I could correct this inequity was to commute the death sentences to life.

In two cases, rigid legal procedure prevented the whole truth from reaching the jury. One of these was the cause célèbre of Edythe Klumpp, condemned to death for the murder of her paramour's wife. Mrs. Klumpp, under oath, had parroted the story her lover had devised. When she was found guilty and sentenced to hang, she was shocked. And when, after her conviction, her lover skipped town with another woman, she broke down and told the truth—which made her lover the accidental killer of his wife. I had her interviewed under the influence of sodium pentothal—"truth serum"—by a qualified psychiatrist. Her revised story under "truth serum" not only cleared up some contradictions in her sworn testimony, but led to the discovery of new corroborative evidence that placed the murder site miles away from the spot inspected by the jury. When the ambitious prosecuting attorney refused to reopen the case, and the dead woman's husband gave testimony to Ohio Highway Patrol investigators that gave the lie to his own courtroom story, but refused to return to Ohio for further questioning, I could do nothing less, in the interests of equal justice, than commute Mrs. Klumpp's sentence to life imprisonment.

In the other case involving juridical inflexibility, a local scapegrace named Rutherford was convicted of the first-degree murder of a prosperous bookie, largely on the testimony of a girl about town who had already told five different versions of what happened. Several high-court justices, in minority opinions on an unsuccessful appeal, criticized the trial judge for prejudicing the jury by injecting himself into cross-examination of the defendant and making a confusing charge. When the application for clemency reached my desk, I summoned the star witness to Columbus in an attempt to find out which of her stories was the truth. She tearfully claimed that her testimony had been misinterpreted, that she had never known how the bookie had been killed, but presumed that the bookie had been killed by striking the back of his head on the pavement when knocked down by the defendant—hardly first-degree murder. The day Rutherford was scheduled to die, I commuted muted his sentence to life imprisonment.

The two other cases of clemency involved what Chief Justice William Howard Taft, in a ruling concerning the power of executive clemency, called "circumstances which may properly mitigate guilt"—complete lack of judgment because of mental deficiency or nonage. One was a teenager who, having been fed dope and liquor by a man who sold him a gun, in the process of holding up a drugstore shot and killed a woman. The other was a low-grade moron named Niday who had been living in a sordid triangular arrangement with a hard-drinking woman (the first who had ever taken him to her bed and bosom) and her complacent hard-drinking husband. When the woman had sought to make a quadrangle out of the triangle, Niday shot both his paramour and the interloper. I could see no advantage for the state of Ohio in killing these two irresponsibles. I was influenced, in the case of Niday, by affidavits from two jurors who sat in his case, who swore they had not been instructed by the judge that they had the privilege of recommending mercy, and who asserted that most of the jury would not have gone along with a verdict involving the death penalty. I commuted both their sentences.

Whenever I commuted a sentence, the opposition newspapers would scream that I was coddling criminals, thwarting the orderly process of law in Ohio and encouraging murderers by striking down the deterrent power of the death penalty. My mail was overloaded with shrill, abusive letters accusing me of opening the doors of their writers' homes to the lawless, of offering the underworld an open season on policemen. I answered every letter, patiently explaining that the death penalty for murder was still on the statute books of Ohio and had not deterred the perpetrator of the heinous crime the letter writer was deploring.

The police lobby, which was in the forefront of the opposition to every attempt I made to have the Ohio legislature abolish capital punishment, has been persistently blind to the facts and figures refuting the argument that the death penalty deters the potential murderer—particularly the cop killer. Let's look at the record.

Michigan, a state with a common border with Ohio, abolished capital punishment while still a territory and has never restored it. Yet Michigan has a lesser number of homicides per 100,000 than either Ohio or Indiana, next-door neighbors who still kill their killers. As for the plea of the police lobby—which, incidentally, succeeded in excepting cop killers from the bills abolishing capital punishment which passed both the New York and Vermont state legislatures in 1965—let us again look at the record. Figures compiled by the FBI over a period of 35 years do indicate a slight difference between death-penalty and life-imprisonment states. The chances of a law-enforcement officer being shot and killed in the performance of his duty are 1.3 per 100,000 in death-penalty states. In abolitionist states, the chances are fractionally less—1.2 per 100,000.

The nonstatistical evidence disproving the deterrence argument is even more impressive. The Licavoli gang, which terrorized Toledo during Prohibition, had only five miles to go to the Michigan line, where they could knock off a business rival secure in the knowledge that they would enjoy the same safety from the electric chair as that enjoyed by the family branch in Detroit, the Purple Gang. They didn't even bother to drive those five miles. All bodies were found in Ohio—which often kills its killers.

Even a more intimate acquaintance with the electric chair has just as little deterrent effect. Let us consider the case of Charles Justice, another Ohioan, who in 1902 found himself in the penitentiary, a three-time loser, as a result of a knifing. A trusty, he was assigned to housekeeping duties in the death house, where he noted that the electric chair was several sizes too big for the smaller type of murderer. The littler ones would squirm and make imperfect contact, causing the electrodes to arc and burn, producing barbecue odors that distressed the official witnesses. Charles Justice invented an iron clamp to immobilize the condemned man's arms and legs; it proved so successful that it is still in use today. For his services to the state of Ohio, Justice was paroled in April 1910. In November of the same year, undeterred, Charles Justice returned to Ohio Penitentiary as Convict 40,103, charged with murder in the first degree. On October 27, 1911, he died in the electric chair he had helped to perfect.

A more recent instance—from another state—is to be found in the sad tale of Detective Sergeant William Mulrine III, of the Wilmington, Delaware, police force. In 1958 the Delaware legislature abolished the death penalty. Expressing his pride in "this forward step in criminology," Delaware Attorney General Januar D. Bove, Jr., two years later told the Overseas Press Club in New York: "There is no evidence whatever that attacks on police or prison guards or threats to public safety have increased." The police lobby, however, did not give up. In 1961 the Delaware legislature was persuaded to restore the death penalty by a margin of one vote over the veto of Governor Elbert Carvel. One of the more articulate spokesmen for the police lobby was Detective Sergeant William Mulrine III, who argued that the death penalty was not only just punishment for murderers, but a deterrent essential to the protection of law-enforcement officers. Just ten days after capital punishment was reinstated, undeterred Sergeant Mulrine shot and killed his wife. He escaped the just punishment he had recommended, however. On the third day of his trial for first-degree murder, he pleaded guilty to the lesser charge of manslaughter.

Another reason I am opposed to capital punishment is that by the vindictive act of taking a life for a life, society deprives itself of a potentially useful contribution. Retentionists argue that life imprisonment is dangerous and meaningless because the lifer is turned loose in seven or eight years to kill again. This is demonstrably untrue. Clinton Duffy, former warden of California's San Quentin, has said that the murderer has a greater potential for rehabilitation than other types of criminal. I agree. An outstanding example is Nathan Leopold, a paroled lifer with an infamous sex-crime background who is now a useful member of society. Ohio has a Lifers' Hope Law, which requires that the Pardon and Parole Commission review the case of every life-termer at the end of 20 years, and every 5 years thereafter if the Commission does not believe he has yet shown signs of rehabilitation. Of the more than 200 murderers who have been paroled since the law took effect in 1945, only 11 have been returned to the penitentiary for infractions of the law, most of them for technical violations of parole.

I lived with these murderers for the four years of my term as governor. They were assigned to staff the Executive Mansion—gardeners, chauffeurs, laundrymen, housemen, cooks and yardmen. My wife and I lived with these men, killers all, not as keepers and prisoners, but as human beings with whom we shared their many problems as errant members of society who had paid their penalty with 20 years of their lives. We trusted them completely. My wife had no fear of going into the kitchen and arguing over a recipe with a cook who was sharpening carving knives at the time, even though the cook was serving time for murder. She felt quite at ease being driven by a felon, or dressing down an ex-lifer houseman who left dust in the corners. The greatest display of trust, I suppose, was our leaving these homicidal staffers as baby sitters for our grandchildren when they came to Columbus for the Christmas holidays. The only risk we ever ran was that the felonious baby sitters would spoil our small fry—feed them forbidden ice cream or otherwise surreptitiously overindulge them. These men are still our friends, now that they are "on the outside" and I am no longer governor and cannot help them officially. They come to our house during the holidays to see the grandchildren, to meet one another and exchange progress reports, and to help out with our parties.

In all honesty I must say that the only backslider in all the 200-odd parolees in the category of homicide was a well-behaved, smiling, good-natured man named McIntosh who had been convicted of second-degree murder because he killed a boarder who not only was behind in the rent but borrowed his car without permission and wrecked it. When the boarder failed to pay for the damage, McIntosh shot him. Some ten years later, after his release, when McIntosh's son-in-law repeated the pattern—failed to pay his rent and also wrecked the family car—McIntosh went berserk and shot him, too. This time, he was not sent to the penitentiary, but to a mental hospital. He was adjudged insane.

Why McIntosh had not been adjudged insane the first time around is not surprising. The whole question of medical or legal insanity is one of the factors that frightened me every time I was asked to rule on whether or not to grant mercy to a man condemned to death. One of the six I permitted to die was a man named Ronald Fenton, whose crime was so heinous that had I commuted his sentence, his prisonmates would have made his life unbearable. Fenton had kidnaped a year-old baby girl, raped her, beaten her brains out on the steering wheel of his car when she screamed, then tossed the body into an Akron pond. To my mind, no man capable of such an act can be considered sane. He did, however, appear to be a normal 27-year-old rubber worker on a night shift in the Goodyear plant. When I interviewed him, he told me in the most matter-of-fact terms the story of his early life and the details of how he raped and killed the baby. There were strong indications of a warped sexuality in his early life. He was a fetishist as a boy, stealing women's panties off neighbors' clotheslines as inspiration for his masturbatory fantasies. He had also dabbled in homosexuality, although he was married (to a girl with whom he had had sexual relations since she was 12) and was the father of one child. The psychiatrists who examined him, however, agreed that although he was a disturbed psychopathic personality with sexual deviation, he was "without psychosis" (legally sane). Under this circumstance, I did not feel that I could extend clemency.

The whole question of medical and legal sanity is a deeply disturbing one, particularly when the death sentence is involved. The courts in the vast majority of our states still determine the question of mental responsibility for a crime on the basis of an English decision made more than a century ago. The McNaghten Rule, the criterion in use almost universally, declares a man sane if he can distinguish right from wrong and knows that the act for which he is being tried is wrong. The "rule" is based on the trial of one Daniel McNaghten, who in 1843 tried to kill Prime Minister Sir Robert Peel and killed his secretary instead. He was found not guilty by reason of insanity.

A well-housebroken dog knows the difference between right and wrong, and acknowledges his guilt when he has violated the rules. Yet this is all that is necessary, under the ancient McNaghten rule, despite the progress of modern psychiatry, to make a disturbed killer a candidate for the electric chair. In 1965 New York joined Maine, Missouri, Illinois, Vermont and the District of Columbia in adopting laws that bring the concept of legal insanity closer to modern psychiatric thinking. Forty-five states, however, still cling to the "mad dog" concept of responsibility.

Legally and medically sane or not, there is not the slightest doubt that society must be protected from men with warped psyches like Ronald Fenton. Killing them, however, is not the answer. In the months following Fenton's execution, several more sex murders were committed in the same area, proving yet again that the death penalty is no deterrent and that we have a long way to go before we achieve an effective method of penology. Fenton, for example, had been in custody several times for what were deemed "minor offenses." Had we been prepared to examine a prisoner psychologically, particularly when his offenses seemed to form a behavior pattern, we might have discovered the psychopathic urges that led to the final tragedy and hence prevented it.

Our present system of correction obviously does not correct. Our crime rate is rising steadily despite the threat of the electric chair, the gas chamber or long prison terms. Could this not be because we have for centuries thought of crime only in terms of punishment? In killing our major criminals in an attempt to reduce or eradicate crime, are we not treating symptoms rather than a disease itself? After centuries of dismal failure to reduce crime, should we not try a new approach of prevention rather than punishment, of education rather than electrocution, and of rehabilitation rather than revenge?

We must attack crime through the proven causes of crime: poverty, ignorance, broken homes. Eighty-five percent of the youthful inmates of Ohio's Boys' Industrial School are there for psycho-sociological reasons. Many are school dropouts, many are emotionally disturbed. Because of inadequate space and staff, they are given mass treatment with no attempt at individual attention. Too often they are returned too soon to the same crime-breeding environment that created the antisocial attitudes and behavior that originally led them to reform school. In addition, for our reformatories truly to reform instead of serving as training schools for the penitentiary and apprenticeship for the electric chair, we would need more and bigger institutions with a trained staff big enough to appraise each child and situation, and to find him a suitable foster home.

Ideally, we should head off juvenile delinquency even before it reaches the reformatory stage. To do this would require radical expansion of psychological and counseling services in the lower and middle levels of our educational system, with facilities for diagnosing and treating the emotionally disturbed child. This would be an expensive process, but in the long run the results would justify the outlay. I am sure we would find it infinitely more effective in preventing crime, up to and including murder, than capital punishment.

Happily, the realization that capital punishment is futile is beginning to dawn on more and more American states. During 1965 the legislatures of Iowa, New York, Vermont and West Virginia abolished the death penalty, although the police lobby was powerful enough in New York and Vermont to secure exceptions in the case of killers of police officers and prison guards. In 1964 the people of Oregon voted to do away with capital punishment. Previous abolition states are Alaska, Hawaii, Maine, Michigan, Minnesota, North Dakota, Rhode Island and Wisconsin.

The American people are even further ahead than their legislators, judging from the increased reluctance of U. S juries to exact a life for a life. According to the FBI's Uniform Crime Reports, there were 8400 murders in the United States during 1962. Only 47 of the 8400 murderers had been executed at year's end, and just 247 more were under sentence of death. In 1965, only seven people were executed in the U. S., the lowest number in our history; and, for the first time, all seven were convicted murderers.

Apparently an increasing number of people share my belief that the concept of "civilized society" and the perpetuation of retributive, legalized murder are incompatible. That is why I am convinced that capital punishment, that barbaric survival from the Dark Ages, will inevitably disappear completely from these United States.