Statement by Montana Catholic Conference on Death Penalty, November 1981
The Montana Catholic Conference
on Capital Punishment
The United States Catholic Conference, out of a commitment to the value and dignity of human life, has declared it's opposition to capital punishment. The following paper proposes to examine the issues involved and to provide support for the stand against capital punishment. The first section of this paper provides a brief history and update of the death penalty. The second section discusses the purposes of criminal punishment, as commonly held, and their relationship to capital punishment. The next three sections deal with the following arguments: (1) Deterrence, (2) Caprice and Mistake, and (3) Cost. The last section deals with the Church and the Christian viewpoint on capital punishment.
I. The Death Penalty Past and Present
Since time immemorial, societies have utilized the death penalty. The reasons for its use and the manner in which it has been used have changed, but the death penalty itself remains. In the early colonies the death penalty was inflicted for a wide variety of reasons: stealing, selling guns to the Indians, witchcraft, murder, assault, rape, and kidnapping to mention a few. Hanging was a common method of execution, although history books disclose burnings at the stake and various torture methods of execution as well. Executions at this time were public and attended by vast numbers of people. Previous to 1930, official records of executions were not kept. Since 1900, however, there have been somewhere near 7,000 executions in the United States.
The year 1935 was a record year for executions; there were 199. Since 1930 executions have been carried out for seven different crimes: murder, rape, armed robbery, kidnapping, burglary, espionage and aggravated assault. The last execution, to be witnessed by the public, took place in Missoula, Montana in 1942.
The frequency of executions eventually began to recede and we appeared to be moving away from use of the death penalty. By the late sixties most of Western Europe had abolished capital punishment. Britain abolished its death penalty in 1969. Although the United States did not abolish capital punishment, a moratorium of almost ten years began in 1968. In 1972, the United States Supreme Court, in a five to four decision (Furman v Georgia), ruled that the death penalty, as then imposed, was capricious and discriminatory and therefore unconstitutional. Following this ruling, many states changed their statutes to a mandatory death penalty for certain crimes, hoping to meet the specifications of Furman. In 1976 the Supreme Court upheld the death penalty in Gregg v Georgia. The Georgia statute provided for a bifurcated approach for conviction and sentencing and also called for mandatory expedited review of all death sentences, as well as consideration of aggravating and mitigating circumstances. The court would later strike down mandatory death sentences in Woodson v North Carolina. In 1977, the moratorium in the United States ended with the execution of Gary Gilmore in Utah. Since that time, three other persons have been executed: Jesse Bishop in Nevada, John Spenkelink in Florida, and Stephen Judy in Indiana. Since 1976, capital punishment has grown in popular support. Thirty eight states have enacted or reinstated capital punishment to date. There are presently 848 persons on death row across the nation. Montana's death penalty statute has been revised and, having been patterned after Gregg, the current statute has been upheld. There are three persons on death row in Montana.
II. The Purpose of Criminal Punishment
Punishment is commonly held to have four purposes. They are: (1) protection (of society), (2) retribution, (3) rehabilitation, and (4) deterrence. The first three items will be dealt with in this section. The fourth item, deterrence, will be dealt with separately as it remains the greatest topic of debate in the controversy over capital punishment.
With regard to protection of society, there is a definite alternative to capital punishment; that alternative, of course, is incarceration. "Life" imprisonment, however, rarely means "real" life in terms of years. The subject of parole inevitably arises. The chance of a paroled murderer repeating his crime is actually quite low. "A study of some 1158 released and paroled murderers in eight states (California, Connecticut, Maryland, Massachusetts, Michigan, New York, Ohio and Rhode Island) over the past several decades showed six committed another murder, and nine committed a crime of personal violence or some other felony. That is slightly over one percent.
For that person who continues to remain a threat to society (Charles Manson is perhaps an example) "real" life with no parole is still an alternative to execution.
Retribution is defined as something administered or executed in recompense, to return in kind. It is defined by some as simply revenge. Part of the reasoning in the retribution theory includes Hegel's notion of establishing an equilibrium of restoring the state of being to what it had been before the crime was committed. This, of course, is impossible because the victim cannot be restored. "We do not, in the name of the State, stab, shoot, throw acid, maim or mug persons convicted of such aggravated assaults. Where, then, is the rational logic for retention of the death penalty for inflicting death?"
The purpose of rehabilitation is obviously forgone in a case of capital punishment.
The issue of deterrence is currently the most debated subject on the topic of capital Punishment.
A. The Criminal and the Crime
We must consider whom we are trying to deter and some of the circumstances involved. A great majority of homicides occur between persons who know each other. The risk of serious attack from family, friends, spouses and acquaintances is almost twice as great as it is from strangers. A large portion of murders involve alcohol. Murder is often a successful assault, the outcome depending on whether a weapon was present or not, and what type of a weapon it was.
There are different kinds of murders; ordinarily they fall into three categories:
(1) the premeditated killing, (2) the felon killing, and (3) the impulse killing.
- Premeditated murder - The person who methodically plans the demise of another human being is not deterred by the death penalty because he does not plan to get caught.
- Felon murder - The person who commits murder during the commission of a felony (burglary, rape, kidnaping) does not necessarily plan to kill. The homicide results when things do not go as planned and the criminal becomes desperate. The fear of being "caught" at this point, far outweighs the fear of execution. The possibility of being identified by a witness and consequently apprehended normally is what prompts the homicide.
- Impulse killing - This type of murderer is even less likely to be deterred by the threat of a death penalty. Consumed with the passion of the moment, he gives no thought to the consequences of his actions.
B. Neither Swift Nor Sure
"Theories of criminology stress that a necessary condition of deterrence is that there be swift and sure administration of the criminal law."
Anthony Amsterdam, "The Case Against the Death Penalty", Juris Doctor Magazine, 1971.
The death penalty is not "sure". A person convicted of murder has a ninety eight per cent chance of not being executed. "In one five year period the FBI's Uniform Crime Report showed an average of 10,122 murders per year; the National Prisoner Statistics over the same period reported an average of 9 persons per year sentenced to death for murder." The death penalty is not "swift". In 1970 the median time between imposition of the death sentence and the execution was 36.7 months. One of the three persons on death row in Montana has been subject to pending execution since 1974.
Due to the very nature of the death penalty and our doubts about it we have created a complex and lengthy legal procedure to safeguard the defendant. "Only the rare, unlucky defendant is likely to be executed when the process is all over." (There are over fifty men in Montana State Prison for deliberate homicide, only three of them were chosen for death row.)
C. The Studies
The studies at present are held to be inconclusive. While revealing some interesting insights, they consist largely of uncontrolled data. The most widely acclaimed study, done by Thorsten Sellin, compared the homicide rate in states with capital punishment with homicide rates in states without capital punishment. There were no statistical differences. In 1965 Sellin also compared prison murders. Taking eleven states, he found 59 prison murders committed in states with capital punishment and 43 murders committed in states without capital punishment. An econometric study done by Isaac Ehrlich suggested "an additional execution per year may have resulted on the average in seven or eight fewer murders." This study has been rebutted by three prestigious teams of scholars who have since done further studies. "If anything, the thrust of the studies points to a counter deterrent effect.
A very recent study, published in October of 1980, traced the history of executions in New York between 1907 and 1963 and found that on the average there were two additional homicides in the month after an execution. In 1969 Britain abolished capital punishment. Since that time, the statistical chances of being murdered remain the same, three in a million.
D. Increases Violence
The study, showing the additional homicides following an execution, would indicate that capital punishment actually increases violence. Additional support for this idea lies in the theory of "capital punishment as a vehicle for suicide." Clinical psychiatrists believe there are cases in which a person chooses the commission of a capital crime as a means of committing suicide. "This kind of murderer is engaged in a 'terminal act', in which the killer does not fear death, he longs for death. What he fears is life, with its miseries and desperate conflicts. To such a one, prison is to be feared above all else, for it promises a continuation of the old miseries. Death by execution fits these psychological needs, and the mere existence of the death penalty encourages these pathological gambles with fate." George Bernard Shaw declared: "Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind."
IV. Caprice and Mistake
Our criminal justice system is a human institution; it is not infallible. This system is the one we use to decide who will live and who will die. If we make a mistake, capital punishment is irreversible. The initial decision of whether or not to charge the defendant with a capital crime lies at the discretion of one man, the prosecutor. As the case proceeds, discretion also plays a role in the decisions on conviction, sentencing and clemency.9Bedeau. Human judgement is always susceptible to error. "Though the justice of God may indeed ordain that some should die, the justice of man is altogether and always insufficient for saying who these may be.
V. The Cost
"A system of capital punishment is considerably more expensive than a criminal justice system without capital punishment, considering the financial expense on our courts and prisons. Still every capital case will require a jury trial (10 times as many jury trials as in non capital cases) and most will require at least two jury trials. The selection of a jury takes longer than in a non capital case. The publicity which often accompanies a capital case may force the trial to be moved to another county which creates an added expense. The trial itself will be longer, more complex and more expensive. Appeals in capital cases go directly to the Supreme Court incurring a still greater expense. A member of the Montana Attorney General's office gave the figure $65,000 as the cost for the jury trial and the first mandatory appeal in one Montana case. Usually there are many appeals. The cost becomes exorbitant.
The prison system, as well, suffers in a capital punishment system. "Additional security measures are needed to maintain a 'Death Row' section and the expenses of administering this unit add up to a cost substantially greater than the cost to retain them in prison for the rest of their lives".
With regard to cost, an additional point has been made with a somewhat different emphasis, "In every crime the first chief criminal is society. Capital punishment is too cheap and easy a way of absolving the guilty conscience of mankind. The criminal makes expiation by going to prison; society makes expiation by paying to keep him there."
VII. The Church and a Call to Respect Life
In 1969 the Vatican voided a forty year old law decreeing the death penalty for anyone attempting to assassinate the pope. No one was ever executed under that law. In 1974, the United States Catholic Conference declared its opposition to the reinstitution of capital punishment.
A. Respect for Life
Capital punishment aids the erosion of respect for life. The gift of life is God's alone, He is the author and sustainer of life. Bishop Rene Gracida of Pensocola-Tallahassee stated, "A society which vicariously pushes the button, pulls the switch or administers the lethal injection is brutalized thereby to the point of accepting deliberate, premeditated killing as a means of accomplishing an end which is construed as good."
The Christian purpose of punishment is reformatory, not vindictive. We are called to remember God's healing love and that human life is never beyond redemption. Christ came to save and not to condemn. St. Paul explains to the Romans, "Never repay evil with evil, but let everyone see that you are interested only in the highest ideals. Do all you can to live at peace with everyone. Never try to get revenge; leave that, my friends, to God's anger." C. An Eye for an Eye - The Old and the New Ancient Israel authorized the death penalty for a variety of crimes. The shedding of innocent blood was held to pollute the land and purification could be achieved only by the spilling of more blood. With regard to this tradition, Bishop Gracida offers some interesting insight:
"Perhaps the more ancient books of sacred scripture show that use of the death penalty was authorized by God only in the sense that these books show that other practices, common in those days but now believed to be immoral by Christians, were authorized by God. In other words, perhaps God merely permitted the use of the death penalty, as he merely permitted the practice of polygamy and merely permitted the practice of slavery, until deepening of faith and a growing sense of human personal dignity, nurtured by faith, would lead to replacement of these practices by alternatives consonant with the natural law and the new law of Christ. The law of Christ does not replace natural law but fulfills and elevates it by assuming it into union with the grace of the Holy Spirit, who teaches and guides Christians from within." Christ said, "You have learnt how it was said 'Eye for eye and tooth for tooth'; But I say this to you, offer the wicked man no resistance. On the contrary, if anyone hits you on the right cheek offer to him the other as well; if a man takes you to law and would have your tunic, let him have your cloak as well"(Mt. 5:38). Rev. Rene Gracida, "Capital Punishment and Respect for Life", Bishop Gracida continues, "The spirit gives different gifts to Christians of every age, so that they might use the special opportunities of each age to redeem. The Indiana Catholic Conference declared: "Throughout the course of history, the precious quality of human life has become more apparent to people of all faiths."
C. Christians and the Civil Law
When we reflect upon the use of the death penalty, we are reminded of an execution which took place some 2000 years ago: "We have our law, and according to the law he must die." (Jn. 19:7) "And so Jesus, who was sinless and guilty of no crime, was adjudged to be guilty and was executed. Perhaps by planning our redemption through such a miscarriage of justice, God has revealed to us that the deliberate act by which society takes a human life in the name of 'law and order' is a heinous perversion of justice. The death of Jesus must serve to illuminate our minds as we examine the relationship between Christians and the civil law, especially law which imposes the death penalty."
In summary, capital punishment is not the sole alternative for protection of society. A death penalty does not allow for rehabilitation. Capital punishment is not a proven deterrent. On the contrary, it may actually increase violence. Rev. Rene Gracida, "Capital Punishment and Respect for Life", Summer 1980
In a capital case, there always exists a possibility for error. A system of capital punishment is lengthy, cumbersome and expensive. The preceding statements are a response to some important issues regarding the death penalty. Ultimately, however, the Christian must examine this issue in light of the gospel vision. Therefore, out of a commitment to maintain respect for life, to preserve human dignity and to manifest the redemptive message of Christ, the Montana Catholic Conference declares its opposition to capital punishment.