Capital Punishment: Ineffective, Unjust, Unconstitutional

• Author: Fred Speaker
• DOI: 10.1177/003288557305300104
• Date: 01 April 1973
• Published date: 01 April 1973
• Subject Matter: Articles

Capital Punishment:
Ineffective, Unjust, Unconstitutional
By
Fred Speaker, Esq.*
Once again we turn to the bloody business of savage murder
and violcnt retribution.
Again this year, as in virtually every one of the past three
hundred years of Pennsylvania history, the debate about the dcath
penalty has wracked and divided this Commonwealth.
Almost a year ago the Supreme Court of the United States
spoke what could have been the ultimate words in the dispute.
The full Court, examining death decrees in murder and rape cases,
held that:
..........the imposition and carrying out of thc
death penalty in these cases constitutes cruel
and unusual punishment in violation of the
Eighth and Fourteenth Amcndmcnts.l
The Supreme Court specifically extended this holding2 to
the Pennsylvania death penalty statute; but the several proposals
for restoration now before the General Assembly demonstrate,
sadly, that the issue has not yet been laid to rest.
The death penalty should be kept from Pennsylvania. It
cannot be made constitutional. Even if it could, we should let others
follow that gory course and turn our attention to ways to protect
and promote human life.
Deterrence
The proponents of the death penalty have advanced various
arguments in its support. Some see a Biblical imperative. Others
seek vengeance. Some argue that it is the ultimate weapon against
recividism -- or is a device to force guilty pleas. But it is the claim
that the death penalty is a deterrent that is the basis for most of the
support.
Does the death penalty deter crime? There is no solid evi-
dence that it does. As the United Nations study3 of the effect of the
death penalty world-wide has shown, there is no statistical evidence
that establishes the existence of deterrence when compared to the
deterrent effect of a life sentence.
*
Mr. Speaker was formerly Attorney General for the Commonwealth of
Pennsylvania. This article is adopted from his statement to the Governor’s
Study Commission on Capital Punishment on May 11, 1973. The statement
has also been reprinted in Trends
,
November/December, 1973.
36

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History presents some strong arguments against the belief
that executions deter. Capital crimes proliferated when executions
were common.
When pickpockets were publicly hanged in England,
it was not safe to be in the crowd because there were so many pick-
pockets at work. We even read recent FBI reports that show murder
of police officers decreased in the half year after the Supreme
Court outlawed the death penalty.
This history is not cited to show that the electric chair or
the gas chamber encourages murder -- although some make that
claim.4 It is cited to show the impossibility of proving that they
prevent murder.
Yet the burden of proof must be on those who would de-
liberately take life in order to protect life. It is the terrible burden
of those who argue that it is a deterrent to prove their case -- a
burden not yet shouldered and one that is impossible to carry.
Some argue that deterrence defies statistical proof, but
can be established by human experience or by logic. But for every
isolated interview cited -- where a felon claims he didn’t ’carry a
weapon because he feared the chair -- there can be cited the case of
psychotic or an exhibitionist’ incited by the death penalty to kill.
Similarly, logic fails. Surely, if the death penalty deterred
murder, when capital punishment was still imposed there would
have been more killing in states relying solely on life imprisonment
than in capital punishment states. It didn’t happen.’ If the logic
held, the rate of murder would have increased after a state abolished
the death penalty. It didn’t happen.’ If deterrence were effective,
there would be more killings of guards by lifers in abolitionist states.
That hasn’t happened either.
8
If there were mysterious, uncounted, unidentifiable would-
be killers held back from striking because they feared the chair,
proof of their existence would have shown up in the studies. They
didn’t show because they didn’t exist. So those who argue deter-
rence -- now
with the heavy burden of proof placed on them -- can
neither support their burden nor explain the evidence directly
against them.
How can we allow the return of a primitive practice that so
demeans us all on such a flimsy basis as discredited logic or a hand-
ful of unverified subjective reports?
The Constitution
The effect of the action of the United States Supreme Court
-37-

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last year was to shift the burden of proof to the advocates of the
death penalty. The result of the Court’s decision was to render un-
constitutional every statute allowing a discretionary death sentence
to be imposed. This is the clear import of the Furman case. There
were nine separate opinions written, one by each member of the
Court. But, although each of the five majority opinions differed in
breadth and in scope, all five Justices are in solid agreement that
discretionary death penalties are unconstitutional.9
The Supreme Court’s order list, issued contemporaneously
with the Furman decision, establishes beyond dispute that the dis-
cretionary death penalty has been eliminated. In a single day, the
Court summarily vacated death sentences based on some 26 state
statutes, including Pennsylvania’s, involving 117 additional felons.1 0
Thus, no matter how the death sentence was determined,
if it involved the exercise of discretion, the United...