Death Penalty Winning Favor

Outrage over the seven California murders of which Charles Manson and his women companions have been convicted has swung public opinion strongly in favor of capital punishment just us it seemed that the death penalty was on its way out. This article reexamines the capital punishment controversy in the light of the Manson case convictions. Miss Schreiber, one of the authors, is a professor of the John Jay College of Criminal Justice of City University of New York.

By FLORA RHETA SCHREIBER and STUART LONG

NEW YORK — The death rattle of the death penalty has long been heard in the land. Many citizens, however, now crying for blood in the Charles Manson case, could reverse this trend.

The raw cry for blood is heard in the voice of the Huntsville, Tex., prison guard who said, “They ought to bring Manson to Texas and fire up ‘Old Sparky’ again.” ‘Old Sparky’ is the Texas electric chair that hasn’t been used in six years.

That cry, more dignified, rationalized, but unmistakably bloody, is epitomized by a California school teacher.

“Yes,” she said, “I certainly think we should abolish the death penalty. But the Manson crime was so bestial, so senseless, I don’t think the perpetrators should be allowed to live. And I’d hate to think I was contributing to their support in prison.”

Chuck Bergansky, an ex-convict and currently a member of the Fortune Society, an organization committed to the reform of the penal system, hears the same cry when he addresses high school, college and civic organizations.

“Even the people in these groups who don’t believe in capital punishment,” he told us, “want Manson to get the gas chamber.”

Such attitudes can retard the movement for the abolition of capital punishment. Dr. George Beto, director of corrections for the State of Texas and past president of the American Corrections Association says, “These senseless killings are going to reduce sentiment against the death penalty.”

Johannes Spreen, former police commissioner of Detroit, now a professor at John Jay College of Criminal Justice in New York, added, “I’m afraid the call for the death penalty for these so-called senseless crimes will create a new demand for death penalties in all murder cases.”

Don Reid, who has witnessed 189 electrocutions as editor of the Huntsville, Tex., Item, echoed:

“Everyone I talked to wants Manson to be executed. It’s mob psychology. You can’t blame people for feeling that way. But, after my 30 years of watching executions, I still think and eye for an eye and a tooth for a tooth won’t solve our social ills or return the victim to life. Think back. Who remembers Chessman and is deterred from crime?” Because of his experience, Reid has often testified against capital punishment.

At stake is not just an issue but also the lives of 619 men and women in Death Row in prisons across the United States. Their fate hangs on how the Supreme Court rules in a number of cases, probably to be decided in the spring term of the court.

Donald E.J. MacNamara, a professor of correction administration at John Jay College, believes that “a decision adverse to the abolitionist movement might result in a large number of executions.” He speaks from his background as past president of the American Corrections Association and of the American League to Abolish Capital Punishment.

These 619 have been kept alive for years, some even for decades, because of opposition to the death penalty within the states and by the refusal of some governors to carry it out. Most important have been a half dozen cases before the Supreme Court, challenging the constitutionality of both capital punishment itself and of the process by which it is imposed.

According to a judge, who for reasons of judicial ethics must be nameless, the 619 are likely to die “natural” deaths because all of the cases before the court challenge the death penalty on various grounds. Two of the most important grounds are the prohibitions of the Eighth Amendment against “cruel and unusual punishment” and the avowed lack of due process of law prescribed by the Fifth and Fourth Amendments.

The same Supreme Court judges who shy from overturning hoary precedents by declaring the death penalty unconstitutional seem willing to make it difficult, if not impossible, to administer it, by striking down what they consider unfair trial procedures.

Should the court prove unwilling, what then? Dr. George Beto asked, “what will happen to those on Death Row if the Supreme Court decision goes against them?”

The anonymous judge is confident that the justices couldn’t bring themselves to do it. The consequences would be a mass execution. It would be too abhorrent.

Attorney Jack Himmelstein of the education fund of the NAACP, which spearheaded the legal campaign against capital punishment, is confident that no executions will take place. “The Manson case,” he told us, “will not affect our cause one bit.”

Sol Rubin, counsel for the National Council on Crime and Delinquency, is equally confident. “Whatever effect on public opinion the Manson case may have,” he told us, “I don’t believe it will affect the rulings of Appellate Courts on the constitutionality of the death penalty.”

Clearly the trend is away from capital punishment. Thirteen states have abolished it by law, except that four of them endorse the death penalty for the murder of police officers on duty.

There has been a steady drop from a peak of 199 executions in 1935 to one in 1966 and one in 1967. Not since June 2, 1967, when Luis Jose Monge died in a Colorado gas chamber for killing his pregnant wife and their two children, has there been a prison execution in the United States.

Perhaps the need for this decrease was best expressed in a conversation we had with George Edwards, former police commissioner of Detroit and now judge of the U.S. Circuit Court for Appeals for the Sixth District. He spoke as a member of the National Commission on Reform of the Federal Law.

He voted with the majority to recommend the abolition of capital punishment to Congress for four chief reasons: First, there is no evidence that capital punishment deters crime. Second, errors in our criminal justice system in murder trials are not rare and an innocent man sent to his death can not be recalled from it. Third, wherever possible, our nation should uphold the concept of human rights. Fourth, capital punishment, to date, has dealt unequally with the poor and the rich, and with black as compared to white.

None of this means, however, that public support will not go to the judge and jury should Manson and his three young women accomplices be sentenced to death.

“But,” warns Donald MacNamara, “this is not only because of the crime with which they are charged, but also because of their physical appearance, their habits and their life style.” To Douglas Lyons, chairman of Citizens Against Legalized Murder, the public’s revulsion against Manson is “a cry of revenge because he killed somebody famous and beautiful.”

MacNamara predicts, however, that there will be a boomerang effect.

“Shortly after the imposition of death,” he said, “the public would begin to realize that these highly disturbed people could not, under any interpretation of criminal responsibility, be convicted of crime at all.

“Probably they should have been institutionalized in a state mental hospital. This could lead the public to question again whether capital punishment should be used in any kind of case.” Curiously, though, not even the Manson defense lawyer introduced a plea of insanity.

Senseless, but not without the motive of dramatizing contempt for American society, the Manson killings have engendered strong feelings even among hippies themselves.

“He’s just a nut, a sadistic, paranoid thrill-chaser,” said a 22-year-old girl in an East Village (New York) hippie commune. “He does our cause no good. We’re against materialism and hypocrisy. He’s just against.”

Being against everything means being a psychotic, not merely sick — sick in the flabby sentimental definition of that word. The tragedy is that there just doesn’t seem to be any institutionalized system for taking care of Manson and others like him.

Lee Harvey Oswald, President Kennedy’s assassin, was diagnosed as a psychotic when he was an adolescent and again while he was in the Marine Corps. But diagnosis did not prevent him from killing a President.

Manson himself was in the custody of the State of California for years. But we have no present means of converting psychiatric diagnosis into enforceable treatment or possible cure. For all the thousands of prisoners in the United States, there is the magnificent sum of approximately 60 prison psychiatrists.

“The therapy and rehabilitation of psychotics in our prisons,” Dr. Murray Bowen, an eminent psychiatrist, told us, “is almost nil. On a broad, practical level, rehabilitation isn’t taking place and perhaps it can’t take place. Psychiatry, I think, allows people to believe it can do a great many things it can’t do.”

Dr. Karl Menninger, leaning across his semicircular desk in his Chicago office, told us:

“I don’t believe in punishment at all. But obviously people who do such terrible things can’t be relied upon to control themselves. There are a lot of different methods to control them without chopping their heads off or putting them in a dungeon.”

And so the Manson killings are an allegory for our time. They may or may not perpetuate capital punishment. But they do raise the related issues of preventing heinous crimes and of creating for those who commit “senseless” murders sensible alternatives to mere punishment, capital or otherwise.

In 1938 Irving Zimmerman, his head appropriately shaven, came within three hours of dying in the electric chair in Sing Sing. Convinced of his innocence, the late Gov. Herbert Lehman of New York commuted his sentence.

In 1971 Zimmerman told us, “The men I saw going to the electric chair during my year’s imprisonment were ready to die. They were happy to get it over with.” Luis Jose Mong, too, walked eagerly into the gas chamber.

This suggests that perhaps capital punishment, instead of being a deterrent, is a spur to murder. It is for certain persons perhaps the public equivalent of a suicide they themselves are unable to perform.

But is the issue really Charles Manson and the end of capital punishment? Or is it the prevention of psychosis, hate, alienation in the Mansons, the Specks, the Whitmans, the Oswalds, the Sirhan Sirhans?

Once a prognosis of possible murder can be read, as it was in the cases of Oswald and Manson, it is promptly forgotten. Like the man who murders because he himself wants to die, we as a society are engulfed by a death wish. Sentimental vaporings about the need for prevention at one end of the spectrum and for rehabilitation at the other are nothing more than sound and fury, signifying nothing.

Once capital punishment in the United States is extinct, as it gives promise of being, we need a program of action to deal with murderers proved guilty beyond a shadow of doubt. They should be called upon to contribute to the society they affronted.

This can be done through work programs that develop their skills and talents. Why can’t the Mansons make restitution for their crimes by helping the ill and dying?

We’re not calling for totalitarian coercion, but for democratic persuasion. Perhaps, literally, it could be an eye for an eye — an eye-for-the-eye bank.

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