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Panel at University of Chicago Law School discuss ending capital punishment, part 1

BROADCAST: Feb. 19, 1965 | DURATION: 00:34:58


A panel at University of Chicago Law School discuss ending capital punishment (tapes A and B) and with Dick Gregory (tape C). Includes presentations from Hans W. Mattick and Arthur Wineberg. (Part 1 of 3)


Tap within the transcript to jump to that part of the audio.


Host Good evening and welcome to the University of Chicago Maroons Forum and the abolition of capital punishment. I'd like to first thank our panelists, Mr. Mattick, Father Jones, Mr. Weinberg, Mr. Calloway, Mr. Morris from the Law School. Mr. Gregory is scheduled to speak, will be here this evening. He's going to be a few minutes late. I have a couple of announcements I'd like to make. He's been detained down south I understand. First I'd like to announce that there's a fund raising benefit sponsored by the Citizens Committee for Bill Witherspoon. Now Bill Witherspoon is a man who is on death row right now and a good deal of the present agitation to abolish capital punishment has been caused by Mr. Witherspoon. This benefit would be it Mother Blues at 1305 North Wells Street at 8:30 p.m. this Sunday. There will be entertainment provided by Mr. John Brown, [Ginny Clements?], Del Close, Gene Farmer, The Eastgate Singers, John [Granderson] and others. The admission will be a dollar fifty. I'd also like to announce that the petitions which are circulating through the audience if signed would be sent to Governor Kerner and they say that they are to influence him to do something for Mr. Witherspoon. These, if you have any further desire to help this committee they can be contacted care of the Citizens Committee for William Witherspoon care of Mr. Elmer Gertz, Suite 1351, 120 LaSalle Street Chicago three Illinois, and the two announcements I've just read will be in the "Maroon" tomorrow for those of you don't have your pens and pencils and this information can also be obtained by calling the "Maroon" office. Mr. Terkel, who was scheduled to moderate this evening can cannot be with us and in his place Mr. Callaway will be moderating. Mr. Callaway is Public Affairs and Editorial Director of WBBM CBS Radio in Chicago. He's written many magazine articles and broadcast many documentaries on radio on the issues of civil rights, criminal law, and penology. His rating has won 13 awards from CBS including the Best Documentary of 1963 award from the Associated Press for his one hour program on Vincent Ciucci, the Vincent Ciucci capital punishment case. Mr. Callaway is member of the Illinois Academy of Criminology. Mr. Callaway:

John Callaway Thank you [Matt?] [applause] I might add that we have a another reason for being here tonight not only the Witherspoon execution date of March 19th but the subject is very germane and so far as the Illinois state legislature has before it legislation which would abolish capital punishment in this state as it has had in several past sessions. And it is now in the process of being mangled with numerous amendments which are trying to qualify the bill in various ways and its fate is, I believe if I'm properly informed at this moment, far from being decided. We have a most distinguished panel tonight. I think when this evening is over that you will have an extremely excellent factual sociological, moral backgrounding on what capital punishment is about. If you haven't made up your mind on the issue I think that tonight despite the fact that I think most of our speakers favor the abolition of capital punishment that you'll be given an extremely wide factual horizon with which to consider the issue if you don't have your mind made up. Although I'm told that many of you do. Our first speaker this evening is Hans W. Mattick, whom I consider one of the outstanding sociologists and criminologists of this country. Mr. Mattick is the former assistant warden of Cook County Jail where he got an awful lot of experience in the reality of criminology in this world. He worked at Stateville as a, the Stateville prison as a sociologist actuary. He by the way is a Phi Beta Kappa graduate of the University of Chicago. He is presently the director of the Chicago Youth Development Project which is one of the largest action research projects in the field of juvenile delinquency in the United States. Mr. Hans W. Mattick.

Hans W. Mattick Thank you John. I would like to make a systematic statement of the major dimensions that should be considered and the capital punishment question, and particularly those arguments which are rational. I leave the irrational arguments to others. Now there is a vast amount of literature on the subject of capital punishment including both expressions of sentiment and rational research. The greatest majority of this literature is published by persons who are against the death penalty. Leaving aside historical surveys and governmental reports about capital punishment we find that all of the rational [research?] [audio fades] tends to strengthen the arguments of those who were against the death penalty and that there is no rational research which supports the arguments of those who favor it. We are thus faced with a peculiar paradox that those who are against the death penalty and who base their arguments on extensive research and statistics have somehow come to be labelled sentimentalists, and those who are in favor of the death penalty and who base their arguments on strong feelings, on tradition, on the citing of authorities and the reciting of anecdotal experiences have somehow laid claim to the label of being realists. The time is long overdue that these labels be reversed. Public policy whether dealing with criminal or civil matters should be the product of rationality. This is especially the case when the public policy is a matter of life and death as it is in a consideration of the merits of capital punishment. In a subject of such gravity we cannot abandon rationality in favor of a sentiment, for the strength of feeling with which a conviction is held is no index to its validity. Men have had the strongest of feelings about the most erroneous of beliefs but the strength of their feelings did not make the world flat nor the sun to circle the Earth. Contrary to their feelings, to their experiences, to the authorities they cited, the anecdotes they told, and what they thought their senses told them, the world turned out to be round and it was the earth that circumvented the sun. This analogy from astronomy is not simply a piece of whimsy on my part but rather bears many resemblances to the situation in which those who favor the death penalty find themselves. I am prepared to argue that strong sentiments, traditional authorities, personal experiences of individuals, and illustrative anecdotes in favor of capital punishment are simply irrelevant. Almost the entire rational argument about the merits of capital punishment is related to the functions that it is alleged to serve on behalf of the society that inflicts it. The greatest amount of discussion has been addressed to the deterrent theory of the death penalty. The position of those who favor capital punishment is that the death penalty deters others from committing capital offenses. This general proposition which has many special cases is an assumption from which many other logical propositions can be deduced and they can all be tested in a manner that is subject to test and proof. We will come to these tests and proofs shortly. The other rational arguments about the merits of capital punishment are subsidiary but also capable of proof. These have to do with the eugenic and the economic functions imputed to the death penalty and with the prevention of vigilante lynchings. That is, it is alleged by those who favor capital punishment that killing the capital offender will remove so-called defective stock from society and that it is cheaper to kill a capital offender than to maintain him, maintain him in prison for life. It is also alleged that the death penalty reduces the number of lynchings. All of these subsidiary arguments [laughter from audience] are erroneous, not to say cynical and will be taken up time permitting. The argument that the cap-- that capital punishment is a quote just retribution unquote against the capital offender is a popular one but it is only a special case of those irrational arguments based on strong sentiments. But one man considers just retribution as barbaric vengeance to another and neither of these sentiments can be cast into the form of a proposition that is capable of test or proof. Let us return then to the general proposition that the death penalty deters others from committing capital offenses. That the death penalty deters the convicted capital offender himself goes without saying [laughter from audience], but imprisonment for the rest of his life would accomplish the same object. So this cannot be cited as a unique purpose of the death penalty. If the only rationale for capital punishment were to deal effectively with the convicted capital offender then life imprisonment would serve the same purpose. No, the deterrent function of the death penalty is alleged to be more general than that. It is alleged to deter, prevent, and reduce the amount of capital offenses being committed in the jurisdiction that inflicts the penalty. If it does not do that then the death penalty serves only retribution or vengeance. It was said that the general proposition that the death penalty deters others from committing capital offenses was one that had many special cases. What was meant by that was that if it were true that capital punishment deters it should deter irrespective of the character of the victim. That is, for example, if the death penalty deters the potential murderer, the benefits of this deterrence should be reflected in a reduction in the number of homicides, whether the victims be ordinary citizens, policemen, or prison personnel. And conversely if there were no death penalty then not only should ordinary citizens be murdered in greater numbers but policemen and prison personnel who have greater exposure to murderers should be murdered in even greater numbers. This is a logical deduction from the argument of deterrence but no part of it can be proven from the evidence at hand. And yet this is what must be proven by those who favor capital punishment. Well, what is the evidence? I use as my sources two publications that are readily available to anyone. The first is a bulletin entitled "Executions" and put out annually by the Federal Bureau of Prisons. The second is the Uniform Crime Reports which is put out annually by the FBI. From those two sources the argument against capital punishment simply drops out almost automatically. Using these sources, let us now recall what it is that those who favor the death penalty on the ground that it is a deterrent must prove and let us compare the situation in the state of Illinois which is entertaining a bill to abolish the death penalty at this session of the legislature. And let us compare that situation with the situation in other states with and without the death penalty. In Illinois the capital offenses are treason, murder, and aggravated kidnapping, but in the period for which there are valued figures, valid figures, that is since 1930, 90 persons have been executed for murder in this state. If there were ever any executions for any other capital offenses they were carried out before that time. Thus for practical purposes the capital punishment question in Illinois is related to murder alone. Illinois is one of the 41 states that have the death penalty. The states without capital punishment in 1965 are Maine, Rhode Island, Michigan, Wisconsin, Minnesota, North Dakota, Oregon, Alaska, and Hawaii. Since 1930 there have been 3833 executions in the United States and of these 55% were of non-whites. In Illinois during the same period of the 90 executions carried out, 34% were of non-whites. In both jurisdictions about 1 percent of the executions were of females. The homicide rate for the United States in 1963 for which is the last for which we are figures was 4.5 per 100,000 population, while that in Illinois was 5.1 per 100000 population. If we compare a state like Georgia to Illinois, we find that in comparison to Illinois' 90 executions since 1930, Georgia has executed 364 persons. And as regards the homicide rates compared to Illinois rate of 5.1 per 100,000, Georgia has a homicide rate of 9.4 per 100,000. Both states have capital punishment and yet they vary enormously in their homocide rate and in exactly the opposite direction from that which we would expect if capital punishment were a deterrent to homicide. Let me hasten to say that the comparison just made is grossly unfair and utterly invalid. Any competent criminologist will tell you that homicide rates are a complex function of a variety of cultural factors that have very little to do with the presence or absence of capital punishment in a state. A more valid comparison for Illinois might be the state of Michigan which is abolished the death penalty since 1846. Just as Illinois has Chicago, Michigan has Detroit and both states are in the same general region of the United States. What does such a comparison reveal? I was speaking in terms of homicide rates per 100,000, In 1963 Illinois with capital punishment homicide rate of 5.1. Michigan without capital punishment 3.3. Chicago, with capital punishment, 6.7., Detroit without capital punishment, 4.4. Apparently those who favor the death penalty can find no support in a comparison between Illinois and Michigan. Furthermore if the deterrent function of the death penalty were an active motive in the mind of potential murderers we would expect that some of them would lure their potential victims into the three states near Illinois that have no death penalty [laughter from audience]. For them, if they were apprehended they would not be executed. Concurrently such activity on the part of potential murderers should increase the homicide rates in those states. Well, what's the evidence again? Illinois with capital punishment, 5.1. Wisconsin without, 1.7. Minnesota without, 1.2. Michigan without, 3.3. On the average, three percentage points less than any, than Illinois. All of the capital punishment states. So there is no comfort in such comparisons for the proponents of capital punishment. And yet Illinois killed 90 persons to achieve a homicide rate higher than the [laughter from audience] non-capital punishment states that surround it. It might well be argued on more logical ground that a state that has the death penalty contributes to the mores that make for higher homicide rates. It may well--It may be well to point out some general trends in homicides and executions that pose some difficulties for those who would maintain that capital punishment has any relationship to murder. That is the problem to which it is allegedly addressed as a specific remedy. The population of the United States in 1940 was roughly 132 million and in 1960 it was roughly 180 million. An increase of about 36%. The number of homicides in 1940 was 7500. And in 1960 it was 8900. An increase of only about 19% in comparison to the 36 % increase in population. Apparently the increase in the homicide rate is lagging behind the increase in population. Secondly, for the period 1930 to '39 the average number of executions per year was 151. In the period 1940 to '49 it was 106. In the period 1950 to '59 it was 60. In the year 1963 only 21 executions were carried out in the United States. Thirdly, in the city of Chicago during the period 1923 to '30 the average number of policemen killed and wounded per year was 25. In the period 1931 to '40 it was 14. And in the period 1940 to '54 which is the last day for which I had figures it was only four. Yet during these periods the situation as to the presence or absence of capital punishment in various jurisdictions underwent no decisive change. That is, those jurisdictions that had capital punishment still have it and those that had abolished it are still without it. Yet we see a decisive increase in the population, a relative decrease in the number of homicides, a sharp decline in the number of Chicago policemen killed and wounded, and a similarly sharp decline in the number of executions carried out in the United States while the presence or absence of the death penalty in various jurisdictions has undergone no significant change. In short, capital punishment is the constant while all the other factors vary over time. In the light of these relationships it would be foolhardy for anyone to maintain that the death penalty or any alleged deterrent quality attributed to it is the crucial factor related to homicide. And yet that is what those who favor the death penalty must prove unless they are simple sentimentalists. Far from being the crucial factor however, the death penalty is simply irrelevant and has no relationship to homicide whatsoever. It is a cruel, expensive, and demoralizing irrelevancy that can only serve the irrational impulses that survive in men. The society or community that maintains capital punishment and believes in its efficacy as a deterrent to homicide may best be compared to a primitive and superstitious tribe of savages who credulously engage in a rain dance to produce the rain they need and desire. Their beliefs are erroneous. Their activity is irrelevant. And when the rains come they are the product of entirely different causes than those that the savages thought were important. The savages and their irrational rituals have long since departed from the plains of Illinois. But in the field of crime and punishment we are still maintaining the irrational tradition of applying irrelevant measures to serious social problems. No matter how strongly we may feel about an irrelevant remedy like capital punishment, it will not help us to deal effectively with a serious social problem like murder. Capital punishment is indefensible on rational grounds. Ever since Socrates and Jesus Christ were made the victims of the death penalty men have questioned the wisdom of its use. It is high time that this survival from the ages of superstition and cruelty be removed from our midst. Capital punishment should be abolished in Illinois. Thank you. [applause]

John Callaway I think you'll agree that the systematic presentation of Mr. Mattick is not only worth thinking about but worth preserving and he has written such a presentation in a pamphlet called "The Unexamined Death," and copies of that I believe are available if you write to the John Howard Association of Chicago at 608 South Dearborn Street. I recommend it highly for your library. It's an excellent document. Our next speaker is Mr. Arthur Weinberg who was with Fairchild Publications, a graduate of Northwestern University although he tells me that he once lectured on Clarence Darrow at the University of Chicago's Downtown Center. Art Weinberg is the author of the biography of Clarence Darrow called "Attorney for the Damned" and with his wife Lila who is here tonight he has written "Instead of War," [sic] "The Muckrakers" and "Verdicts Out of Court." Mr. Weinberg has written at great length for years on crime, criminal justice in our society, and tonight he will give his views on the social implications of capital punishment. Arthur Weinberg. [applause]

Arthur Weinberg John when some of my fellow reporters heard that I was going to speak against capital punishment one of them asked me, What would you do? Would you speak against capital punishment if someone in your family had been murdered, raped, or hurt in any way? And my response to him was that I hope, I wouldn't want to see a thing like this but I hope if it would happen I would have the moral and courage to keep to my convictions that I do not believe in capital punishment and that it would not help either me or the criminal in executing him. A great ethical teacher once said, "I have within me the capacity for every crime." Clarence Darrow in a debate on capital punishment soon after the Leopold and Loeb case said that he had never killed anybody but he had read many an obituary with a lot of satisfaction [laughter from audience]. Violence and thought and inaction have been a way of life ever since the first man killed his brother. It was not too long ago that there was scarcely an objection to the state's right to take a life; whether it be on the scaffold, drinking the hemlock, using the guillotine, the firing squad, the hangman's noose, the gas chamber, or the electric chair. But there have always been voices who have insisted that violence is not the answer; that violence only begets violence. To many the commandment "Thou Shalt Not Kill" means just that: thou shalt not kill. And this means to state as well as the individual. It means that violence whether it be war waged by governments, capital punishment executed by governments, or the taking of a life by an individual is wrong and immoral. But we are not here tonight to discuss the violence of war. We are here rather to examine capital punishment as it relates to society and the individual. Society has progressed far from the barbarity of yesteryear when some hundred and one crimes were punishable by the death penalty. Within our own generation there has been the growing conviction that capital punishment is unjustifiable; that it is unnecessary as the means by which society must defend itself. The modern opposition to capital punishment is a phase of the humanitarian spirit which looks for understanding in tolerance and mercy. It is not that we condone the individual murderer but rather that we want to deal with criminals and murderers in a sane and rational and intelligent manner. We are interested in exploring the reasons for crime, for murder, and how they can be eradicated. We are against the old concept of vengeance. If it can be proven that capital punishment, if capital punishment were removed, murder--Then our society would be safeguarded, I don't think that there would be many people opposed to capital punishment but there's nothing in the history of mankind that indicates that the state's taking a life has diminished crime an iota. We have punished for an untold number of years, and crime and murder still persists. No one denies the right of society to defend itself against antisocial acts; it must defend itself. The question is, how shall this right of self-defense be executed? Shall it be revenge, to punish, to destroy life? Or shall be it in the spirit of a scientist working for a cure from a deadly disease? To find a cure for that disease the scientists must learn its causes, its whys and wherefores, and this can only be done through research and study and all the means at our disposals must be must be used. Psychology, sociology, criminology all must be involved in this project to learn why one man follows the straight and narrow and another misdirects is energy. Socrates had said that it is strange that you should not be angry when you meet a man with an ill-conditioned body and yet be vexed when you encounter one with an ill-conditioned soul. We must learn not to be vexed to meet the ill-conditions soul constructively. The very fact that we have murder on the streets today is evidence of the futility of the death penalty. We boast of our scientific progress, of our ability to put man into space, of automating industry, of rockets, of medical achievements, of our concern for social welfare, the drive for racial understanding. We have made progress in all these areas. We will continue to make progress as long as there are men of vision. But in the arena of crime and punishment we are still thinking in stone age terms. And where are the gadflies to sting society to the awareness of this problem? Within our country there have been movements for the abolition of capital punishment probably since the inception of the republic. Now these must be fortified today. In our own state we are faced with an immediate task to save Bill Wetherspoon from the electric chair. Despite the lack of an adequate rehabilitation program there is every indication that Bill Witherspoon is not the same individual who was convicted of murder and who has spent these years in county jail as his appeals went through the various courts in the hope that the state of Illinois would not add still another name to those it has executed. That Witherspoon would not be the fourth individual to sit in the electric chair i,n the past in the last 12 years. Surely society's safety does not depend on the taking of Witherspoon's life, for that matter the taking of any life. Yet saving Witherspoon might help society. He has learned much in jail. He could work with the younger inmates in the prison and perhaps in working with these younger men, Bill Witherspoon might one, might stop one of these from once again continuing a life of crime when he gets released out of jail. And if Bill Witherspoon helps just one individual surely it is worth saving his life from the electric chair. In that hot summer of 1924 when the state of Illinois demanded the life of Nathan Leopold and Richard Loeb, Clarence Darrow defended them not so much as an attorney but as a philosopher. He insisted that their, that taking their lives would only be an act of vengeance by the state. And who could have foreseen how much good Leopold would do while in prison those 30-odd years, or envision how well we could [orient?] himself as a parolee working in Puerto Rico, and now as a free man still living in Puerto Rico. In many ways, Leopold in prison contribute more to society than many of us who were walking the streets as free men. If the fear of punishment does deter some criminals it has never been proven. And certainly there is no reformation involved. Men cannot be tortured or frightened into greatness, into goodness. On the other hand capital punishment the hardens society. It tends to lessen the sacredness of human life and while professing to be an act of justice it degrades society. Capital punishment appeals to the sadistic impulse of individuals and witness how thoroughly the detailed stories of newspapers are read on elevators and buses and [unintelligible] after the execution. Wouldn't it be better if the criminal were treated with understanding and kindness consistent with the safety of society? The state should always set the highest and most noble example: reformation, not reform, not revenge. As long as the government considers life cheap enough to kill then this will be reflected in the thinking and actions of society itself. Years ago the dogma was that the criminal was hopeless, but today in this society which is analyzed and super-analyzed, where man is becoming more enlightened and with the enlightment feels an empathy with others, surely he must lose faith in capital punishment as a deterrent. For the state to execute a man because he has committed an anti-social act would make it seem that society was perfect. But this is not so. We all bear the guilt for the social conditions which help to create a criminal. The recent murder of [Christiansen?] by the three teenagers certainly is an indication of the malfunction of society, the family, and social agencies. Camus says that just as we speak of serious illness in whispers, it is even more so with capital punishment. We fulfill society's revenge revenge furtively and with few witnesses. If capital punishment is to be a deterrent, if the criminal is to be set up as an example of what happens to one who commits certain anti-social acts, then surely his punishment should be made public. If the individual who is about to commit murder is to be intimidated from committing this act then he should see the horror of the consequences. The execution should be made public. It might not be a bad idea for the television industry to offer it as a public service for only then can it be an example to others. I think there was a cartoon in one of the magazines which showed the electric chair on a television set and the caption "this program comes to you for the courtesy of the electric company." If we are not ready for this wholesale ballyhoo type of promotion, society might just as well forget capital punishment as a deterrent for crime. If we're not ready to do this, and I hope we're not, then let's abolish capital punishment. But at the same time we must institute systems of rehabilitation in our penal institutions and we must also take a look at the social and economic structures which might be creating the climate in which criminals grow. In our petition for clemency for Bill Witherspoon, I think we can well quote the words of Darrow, in speaking to Judge Calvary and the Leopold and, Loeb case he concluded his plea with, "I am pleading for the future. I am pleading for a time when the hatred and cruelty will not control the hearts of men. When we can learn by reason and judgment and understanding and faith that all life is worth saving and that mercy is the highest attribute of man." Thank you. [applause]