The Governors Study Commission On Capital Punishment

• Date: 01 April 1973
• Author: John P. McCloskey,Marc Riedel
• Published date: 01 April 1973
• DOI: 10.1177/003288557305300103
• Subject Matter: Articles

The Governors Study Commission On
Capital Punishment
A Content Analysis of the Testimony of Expert Witnesses
By
Marc Riedel and John P. McCloskey*
Introduction
Prior to the recent enactment of a death penalty statute in
Pennsylvania, a commission was appointed by Governor ~Iilton
Shapp to conduct a &dquo;thorough in depth study&dquo; (Commission Report,
1973:1) of capital punishment. The final report of the Governor’s
Study Commission on Capital Punishment was presented to the
Governor in September, 1973. Of the seventeen commission mem-
bers, ten members recommended that the Governor and General
Assembly not act affirmatively on any bill to restore the death
penalty; six members recommended a limited use of the death
penalty; and one member, while voting with the majority, did not
sign the minority report.
As part of their deliberations, the Commission held day-long
public hearings in Erie, Pittsburgh, Philadelphia, Scranton, and
Harrisburg. In addition to testimony taken from representatives of
various groups and interested members of the public, an expert
witness in favor of reinstatement and one opposed to reinstatement
testified before the Commission. The testimony of the expert wit-
ncsses was subjected to qucstioning by the opposing expert wit-
ness, commissioners, and by the attending public. Verbatim accounts
of the hearings were taken by court reporters.
The purpose of the present paper is an analysis and compar-
ison of issues addressed by expert witnesses and commissioners,
using available transcripts and the techniques of content analysis
(Ilolste, 1969). A central concern in this paper is the extent to
which issues addressed indicated that the &dquo;Commission intended
to attack the broad question of whether or not the penalty of
death was desirable under any circumstances rather than confine
itself to the more narrow question of whether the death penalty
was desirable or feasible under various alternatives that might be
available pursuant to the holding uf the U.S. Suprcme Court in
Furman v. GeonÚa (408 U.S. 238)&dquo; (Commission Report, 1973:3)
* University of Pennsylvania
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Examination of the literature indicates that therc is a set
of issues relevant to the legislation and application of the death
penalty which was important before the Furman. decision and
which remams so after the Supreme Court decision. A review of the
reports of two previous legislative study groups (Joint Legislative
Committee Report, 1961; Report on Capital Punishment, 1972)
indicates that discrimination, considerations of justice, ethical and
religious concerns, deterrence, historical trends, the practicality and
feasibility of the death penalty , and availability of alternative dis-
positions are matters central to the study of the death penalty.
These issues continue to be of importance; however, the Furman
decision has raised additional concerns.
While there is disagreement over its implications for legis-
lation, there is agreement among writers in the field that the
Supreme Court found standardless discretionary sentencing con-
stitutionally impermissable (Bedau, 1973). Although they did not
believe it would withstand constitutional challenge, the Legal Ad-
visory Staff of the Florida Governor’s Committee to Study Capital
Punishment did examine the possibility of statutes which removed
all discretion from juries imposing the death sentence. Their discus-
sion was in response to the Florida Attorney General’s statement
that mandatory death penalty statutes could be constitutionally re-
instated (Ehrhardt, et al, 1973).
Interwoven with the concern over the constitutionality of
mandatory penalties is a concern with their operations. Historically,
mandatory death sentencing has resulted in &dquo;jury nullification&dquo; - a
refusal or lessened readiness on the part of juries to convict (Mackey,
1973). The existance of mandatory sentencing has led to a decline
in the rate of convictions in capital cases (Greenberg, 1897). More
recent studies also suggest that mandatory sentencing was associated
with lower conviction rates and higher commutation rates (Bedau,
1964,1965).While these results are suggestive,they represent isolated
attempts to study what was, until the Furman decision, a matter
of secondary interest.
While the recency of the Furman decision limited the ex-
tent to which its various consequences have been explored, both
the constitutional issues raised by Furman and the problems assoc-
iated with the operation of statutes that might be constitutionally
permissable were additional issues that commissioners and expert
20

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witnesses had to confront.
Because the Pennsylvania Study Commission was formed
after the Furman decision, analysis of the testimony of expert
witnesses and the commissioners could examine the extent to which
pre-c’ur~nan or post-Fz~r~nan issues predominated in the delibera-
tions of the Commission. In addition, we were able to learn which
of the pre- and post-Furman issues were important. Finally, because
we
could compare the frequencies of responses and questions about
issues, we can indicate the importance of issues to commissioners
favoring abolition or reinstatement, to expert witnesses favoring
abolition or reinstatement, and the relationships among the four
groups.
Alctfiod
The source of the data was the transcripts of four public
hearings at Scranton, Harrisburg, Erie and Philadelphia; the tran-
script of a fifth hearing at Pittsburgh was not available. Using two of
the transcripts, an experienced content analyst established a series
of fifty-nine issues against which response were classified. This
was done for the Erie and Harrisburg hearing; an abstract of this
phase of the research appears in the commission report (Riedel,
1973).
The fifty-nine issues were generated by a person employed
solely for the task of contcnt analysis.’ She did not regularly inter-
act with the research staff of the commission, did not attend any
hearings, and asserted that she had not made up her mind whether
she opposed or supported the death penalty. As a consequence of
this, her attempts to develop categories would be based, as much
as possible, solely on the reading of the transcripts.
In addition to the transcripts of two additional hearings, the
present paper utilized a second content analyst. No additional
issues were found on the transcripts hearings from Philadelphia and
Scranton. Because many of the fifty-nine issues were mentioned
only once and because such a large number of categories was too
cumbersome for analysis, the fifty-nine issues were collapsed into
nine issues. The nine issues are given below.
1
The authors would like to express their appreciation to Mrs. Sari Thomas,
doctoral student, Annenberg School of Communications, University of Penn-
sylvania, for her help in the content analysis.
-21-

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1. Discrimination
Responses were placed in this category when they referred
to the consequences of the death penalty in terms of differential
treatment of defendants by race, sex, socioeconomic status, or re-
ligion.
2. justice
Responses in this category included statements or argu-
...