Correspondence from Lani Guinier to Preston Smith (Assistant Dean, Hampshire College)

    I n the

(Emtrt at %  I n M  States
October Term, 1971

No. 68-5027
A ikens,

California,

No. 69-5003
F urman,

Georgia,

No. 69-5030
J ackson, Petitioner,

Georgia, Respondent.

No. 69-5031
Branch, Petitioner,

— v .—

T exas, Respondent.

MOTION FOR LEAVE TO FILE A BRIEF AND BRIEF 
OF AMERICAN CIVIL LIBERTIES UNION, 

AMICUS CURIAE

Petitioner,

Respondent.

Petitioner,

Respondent.

Gerald H. Gottlieb 
210 W. 7th Street 
Los Angeles, California 90010

Melvin L. W ulf 
Sanford J ay R osen

American Civil Liberties 
Union Foundation 

156 Fifth Avenue 
New York, New York 10010



I N D E X
PAGE

Interest of Amicus ................................................ - ....... 6

Summary of Argument..................................................  6

Argument

Introduction....... ..................... -.... -.........................  7
I. Cruelty and the Lack of a Rational B asis.......... 10

II. Cruelty in Context ...............................................  23
III. Upon Proof of Torture .............................-..........  40

Conclusion ................................................................................. 42

Appendices

Appendix A
Transcript from the Los Angeles Superior 
Court Case of People v. Thornton....................  la

Appendix B

A Brief History of Prisons and Penitentiaries .. 59a 

Appendix C
Some Further Glimpses of Capital Punishment:
Father Dingberg and San Quentin Psychiatrist 
David G. Schmidt ...............................................  66a

Appendix D
Assertions of Deterrence and the Circularity 
of Violence ..........................................................  72a

A p p e n d ix  E
Biographies of Non-Legal Authorities 90a



11

Authorities Cited

page

Cases:
Blackburn v. Alabama, 361 U.S. 199 ............................  20
Brown v. Board of Education, 347 U.S. 483 .................  16

Cox v. State, 203 Ind. 544,181 N.E. 469 ........................  8
Commonwealth v. Ritter, 13 D. & C. 285 (1930) ..........  10

Dorr v. United States, 195 U.S. 138..............................  24

Harper v. Wall, 85 F. Supp. 783 (D. N.J.) ...................  33

In re Anderson and Saterfield, 73 Cal. Rptr. 21, 447
P.2d 117 (1968) ..........................................................  9

In re Estrada, 63 Cal.2d 740 (1965) ..............................  13
In re Kemmler, 136 U.S. 436 ......... ........... -........... 12,17, 20
In re Smigelski, 30 N.Y. 513, 154 A.2d 1 (1959) ..........  13

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 
1966) ........................................................................... 8,34

Lear, Inc. v. Adkins, 395 U.S. 653 ............ ...................  9

McDonald v. Commonwealth, 173 Mass. 322, 53 N.E.
874 ............................................................................... 34

Mickle v. Henrichs, 262 F. 687 .........,........ -................. -8, 33

Nowling v. State, 151 Fla. 584, 10 So.2d 130...............  34

People v. Aiken, 74 Cal. Rptr. 882 (1969) .....................  9
People v. Heslen, 163 P.2d 21 (1945) ..................... -......  13
People v. Ketchel, 59 Cal.2d 50 ........ -..........................  13
People v. Oliver, 1 N.Y.2d 152,134 N.E.2d 197 (1956) .. 13



Ill

PAGE

People v. Thornton, 73 Cal. Rptr. 21 (1967) ..............passim
Politano v. Politano, 146 Mise. 792, 262 N.Y.S. 802 .... 34

Robinson v. California, 370 U.S. 660 ............................  17
Rudolph v. Alabama, 375 U.S. 889 ................................ 13

State v. Evans, 73 Idaho 50, 245 P.2d 788 ............... .....  8
State v. Evans, 73 Idaho 349, 121 P.2d 326 .................  33
State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 ..........8, 34
State v. Pugh, 15 Mo. 509 (1851)...................... .......... . 13
State v. Ross, 55 Or. 450, 104 P. 596 ............................ 8, 33
State ex rel. Francis v. Resweber, 329 U.S. 459 ....—17, 28
State ex rel. Garvey v. Whitaker, 48 La. Ann. 527, 19

So. 457 (1896) ....................................... ..................... 8, 34
Stephens v. State, 73 Okla. Cr. 349, 245 P.2d 788 ......  33

Trop v. Dulles, 356 U.S. 86 .................... 8,12,14,17, 20,
40, 41, 42, 43

United States v. Carolene Products Co., 304 U.S. 144 .... 16

Weems v. United States, 217 U.S. 349 ........ 8,11,12, 24, 33
Wilkerson v. Utah, 99 U.S. 130 ............................ ..12, 29, 42
Williams v. Field, 416 F.2d 483 (9th Cir. 1969) ..........  34
Witherspoon v. Illinois, 391 U.S. 510................. ..........  19
Workman v. Commonwealth, 429 S.W.2d 374 (Kv. 

1968) .................................... ...................................... 8,29

Constitutional Provisions:

United States Constitution
Sixth Amendment................................. .............. 43



IV

PAGE

Seventh Amendment

Fourteenth Amendment........................................... 24

State Statute:

Cal. Ev. Code Section 452(g) (h) ............................  9

Other Authorities:
The English Bill of Rights of 1689, 1 W. & M. 2,

c. 2 S 10..................  ...................................-----..........  11
2 Story, J., Commentaries on the Constitution 623

(1873) ......... ................ ........... ...............- - ............. . U
Holmes, The Common Law 42 .................................... 13
Cohen, M. R., Law and the Social Order 310................ 13
Michael and Wechsler on Criminal Law and Its Ad­

ministration 6 (1940) ................................................  13
Ramsey Clark: “Modern penology with all its correc­

tional rehabilitation skills affords greater protection 
to society than the death penalty which is incon­
sistent with its goals.” Speech, July, 1965 ..... ........ 14

Sellin, Capital Punishment (1967) ..............16, 30, 31, 32, 38
Eshelman, Death Row Chaplain 160 (Prentice 1962) .... 18
Dostoevsky, The Idiot 19 ..............................................  19
West, Scientific Reflections on the Death Penalty, 

Center for the Study of Democratic Institutions,
Santa Barbara, California 1967 ................................  21

Duffy, Warden Clinton T., The San Quentin Story 81
(1951) ....................................................................... 21

Cobin, Herbert L., “Abolition and Restoration of the 
Death Penalty in Delaware”, The Death Penalty in 
America, ed. Hugo Bedau (Chicago, 1964) 366 ......  23



V

PAGE

Duffy, Clinton T., 88 Men. and Two Women....... ..........35, 40
Beccaria, Cesare, “On the Death Penalty”, from 1764

Treatise, Dei Delitti E Delle P ens .......................... 29, 30
California Legislature Assembly Committee on the

Administration of Justice, Report 3 (1970) ............31,32
Sutherland and Cressey, Principles of Criminology

292 (1955) .............................................  31,32
Schuessler, “The Deterrent Influence of the Death 

Penalty,” 284 Am. Journ. Pol. and Soc. Sci. 54
(1952) ................................................    31

Gibbs, Suicide 517 (1968) ...............................................31,32
Bedau, The Death Penalty in America 399 (1967) ___  32
Filler, “Movements to Abolish the Death Penalty in

the United States” ............................. ,.......................  38
Dickens, “Letter to M. de Cerjat, December, 1849” .... 38
Cong. Beg. 225 (1791) .................................................. 11
55 Col. L. Bev. 1039 .......................................................  13
31 N.Y.U. L. Rev. 1378 .................................................. 13
36 N.Y.U. L. Rev. 110 .................................................... 13
34 So. Cal. L. Bev. 286 .................................................. 13



I?r th e

(Emul at tl|? InttTft States
October Term, 1971

No. 68-5027
A iken'S,

----v .—

Petitioner,

California, Respondent.

No. 69-5003
F urman, Petitioner,

Georgia, Respondent.

No. 69-5030
J ackson,

----V,----

Petitioner,

Georgia, Respondent.

No. 69-5031
Branch,

—v.—

Petitioner,

Texas, Respondent.

MOTION FOR LEAVE TO FILE BRIEF OF 
AMERICAN QVIL LIBERTIES UNION AS 

AMICUS CURIAE



2

It is hereby respectfully moved pursuant to Rule 42 of 
the Rules of this Court that the above named amicus 
curiae be granted leave to file the accompanying brief in 
support of the Petitioners.

Consent to such filing has been requested and had been 
granted on behalf of the Petitioners Aikens, Furman, and 
Jackson, and for the Respondent State of California.1 
Counsel for Petitioner Branch has indicated that he will 
not oppose Amicus's motion, but he declined to provide 
his consent prior to review of Amicus’s brief. Consent 
has been refused by Respondents, State of Georgia and 
State of Texas. (Copies of the page proofs of this brief 
were sent by first class mail to the counsel for each Re­
spondent on August 27, 1971, the date the Petitioners’ 
briefs were filed.)

The interest of the amicus curiae as stated in the accom­
panying memorandum is as follows:

The American Civil Liberties Union, with affiliates in 
most states, including California, Georgia and Texas, is 
a private, non-partisan organization, consisting of 160,000 
members, which is engaged exclusively in defense of the 
Bill of Rights. The Eighth Amendment to the Constitution 
prohibits the infliction of “cruel and unusual punishments.” 
We believe that execution for crime is a “cruel and unusual 
punishment.” As an organization, we seek elimination of 
capital punishment throughout the United States. In this 
sense, the amicus curiae has a wider stake in the issue 
presented in these cases than do the Petitioners. In the 
accompanying brief and appendixes, the amicus curiae has 
marshalled the best historic and social scientific evidence

_ 1 These letters of consent have been filed with the Clerk. Both 
sides have consented to amicus curiae’s filing of a brief in the 
Aikens case.



3

bearing on the wider issue of the overall “cruel and un­
usual” character of capital punishment, thereby providing 
for the Court the wider context within which these cases 
should be considered.

Respectfully submitted,

Gerald H. Gottlieb 
210 W. 7th Street 
Los Angeles, California 90010

Melvin L. WVi.f 
Sanford J ay R osen

American Civil Liberties 
Union Foundation 

156 Fifth Avenue 
New York, New York 10010



1st the

Bnprtnw  (Emirt of tip? In M
October Term, 1971

No. 68-5027

A ikens, Petitioner,
—v.—

California, Respondent.

No. 69-5003

F urman,

—v.—

Georgia,

No. 69-5030

J ackson,

Georgia,

No. 69-5031

Branch, Petitioner,
—v.—

Texas, Respondent.

Petitioner,

Respondent.

Petitioner,

Respondent.

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE



6

In te re st o f  Am icus

The American Civil Liberties Union, with affiliates in 
most states, including California, Georgia and Texas, is a 
private, non-partisan organization, consisting of 160,000 
members, which is engaged exclusively in defense of the 
Bill of Bights, The Eighth Amendment to the Constitution 
prohibits the infliction of “cruel and unusual punishments.” 
We believe that execution for crime is a “cruel and unusual 
punishment” and for that reason file this brief to present 
argument in support of that principle.

Sum m ary  o f A rgum ent

Three paths of reasoning lead to the same conclusion: 
the death penalty is unconstitutional under the Eighth 
Amendment prohibition of cruel and unusual punishments.

I. The cruel and unusual punishments clause requires 
that all penal sanctions which are cruel, albeit not 
so severe as to be torture, be rationally related to 
a legitimate state objective in the administration of 
the penal law. If the petitioners show that the death 
penalty is cruel and that there is no basis in human 
reason to believe that the death penalty serves a 
permissible objective of punishment, then capital 
punishment must be held unconstitutional.

II. The cruel and unusual punishments clause is a fun­
damental protection of individual rights. The wide­
spread disenfranchisement and extreme isolation of 
prisoners on death rows prevents the condemned 
man from effectively appealing to majoritarian in­
stitutions for enforcement of his constitutional



7

rights. It is the Court’s duty to exercise the most 
rigid scrutiny in this case.

A. The death penalty, clearly suspect under the 
Eighth Amendment, is unnecessary in a so­
ciety with adequate alternative means of ful­
filling the legitimate objectives of the penal 
law. It is therefore unconstitutional.

B. The death penalty and the necessarily asso­
ciated experience of death row shocks and 
devastates the consciences of civilized men. 
It is therefore unconstitutional.

III. The cruel and unusual punishments clause prohibits 
the torture of persons convicted of crimes. If the 
petitioner sustains the burden of proving that the 
death penalty constitutes torture, capital punish­
ment must be held unconstitutional.

A R G U M E N T

Introduction

Amicus notes the policy of this Court scrupulously to 
avoid overstepping the bounds of its province of constitu­
tional review. Conversely it is recognized that when 
fundamental rights guaranteed to the people by the Con­
stitution are threatened, this Court forcefully acts to pro­
tect the Nation’s constituted plan. In the cases before the 
Court questioning the constitutionality of the death penalty 
under the “cruel and unusual punishments” clause of the 
Eighth Amendment, an issue is presented which deserves 
careful scrutiny. Although the fixing of limits upon pen­
alties for crimes is usually a legislative function, there



8

have been eases in which this Court and inferior tribunals 
have declined to give unrestrained deference to legislatures 
—where matters such as the fundamental protection against 
cruel and unusual punishments are threatened.2

This Court has not heard or decided the question of the 
constitutionality of the death penalty under the Eighth 
Amendment. That question is a narrow one; the wider 
question of the wisdom of capital punishment is not the 
focus of this brief.

While narrow, the scope of the constitutional question 
does not prevent a proper disposition of that question. Any 
overcurtailment of the scope of the review could render the 
pointed and economical language of the Eighth “mere sur­
plusage.”

Reference is made to the testimony of certain experts 
in the fields of criminology and sociology,3 psychiatry,4 
penology,5 and medicine and other professionals attached to

2 Weems v. U. 8., 217 U.S. 349 (1910) (cadena temporal) ; 
Trop v. Dulles, 356 U.S. 86 (1958) (de-nationalization) ; Work­
man v. Commonwealth, 429 S.W.2d 374 (Ky. 1968) (life applied 
to juvenile) ; State v. Evans, 73 Idaho 50, 245 P.2d 788 (life for 
lewd conduct); Cox v. State, 203 Ind. 544, 181 N.E. 469; State 
v. Ross, 55 Or. 450, 104 P. 596; Jordan v. Fitzharris, 257 F. 
Supp. 674 (N.D. Cal. 1966) (solitary confinement in inhuman 
conditions) ; State ex rel. Garvey v. Whitaker, 48 La. Ann. 527, 
19 So. 457 (1896); State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 
273 (30 yrs. for burglary) ; Mickle v. Henrichs, 262 F. 687 
(vasectomy).

3 Thorsten Sellin, Emeritus Professor of Sociology, University 
of Pennsylvania.

4 Louis .Jolyon West, M.D., Chief of Neuropsychiatry, UCLA 
Medical Center.

5 Clinton F. Duffy, former Warden San Quentin Penitentiary.



9

the prison6 in the ease of People v. Thornton, Superior 
Court, Los Angeles County, 1967, a collateral proceeding,7 
as well as books and journals.

6 Father Edward J. Dingberg, Roman Catholic Chaplain, 
Byron Eshelman, Protestant Chaplain, William Graves, M.D., 
physician.

7 There is precedent for expanding the meaning of “record” be­
yond its narrowest meaning. In Lear, Inc. v. Adkins, 395 U.S. 653 
(1969), Mr. Justice Harlan for the majority recognized the inade­
quacy of review by this Court, were it not to encompass what the 
state supreme court’s opinion considered. Adkins submitted evi­
dence of an agreement relating to a patent—which was not in evi­
dence in the trial court—to the California Supreme Court.

“Lear argues that this original agreement was not submitted 
in evidence at trial and so should not be considered a part of 
the record on appeal. The California Supreme Court, however, 
treated the agreement as an important part of the record be­
fore it, 67 Cal.2d at 906, 435 P.2d at 335, and so we are free 
to refer to it,” 23 L. Ed.2d at 615 fn. 1.

In the California Supreme Court opinion in the present case, 
reference was made to the disposition of the issue of the constitu­
tionality of the death penalty in a prior ease before the California 
Supreme Court, People v. Aiken, 74 Cal. Rptr. 882 at 889 (1969). 
The opinion of the California Supreme Court in that prior case, 
In re Anderson and Saterfield, 73 Cal. Rptr. 21, 447 P.2d 117 
(1968), makes extensive reference to the brief filed by amicus 
curiae for that case and to the transcript from the Los Angeles 
Superior Court case of People v. Thornton (1967), 73 Cal. Rptr. 
21 at 33, 34, 35, which are referred to in this brief. (Admissibility 
of the social science evidence before the California courts is pro­
vided under Cal. Ev. Code Section 452(g) (h) and the official 
Assembly Committee comment therein.)

A thorough review of the California Supreme Court holding in 
People v. Aiken, the case now before this Court, properly includes 
review of the transcript from People v. Thornton and the social 
science issues raised in the amicus brief before the Court in In re 
Anderson and Saterfield.



10

I.
C ruelty  and  th e  Lack o f a R ational Basis

A. T he Death P enalty and P ermissible 
Objectives oe the P enal L aw

The cruel and unusual punishments clause requires that 
all penal sanctions which are cruel, albeit not so severe as 
to be torture, be rationally related to a legitimate state 
objective in the administration of the penal law. If the 
petitioner shows that the death penalty is cruel and that 
there is no basis in human reason to believe that the death 
penalty serves a xiermissible objective of punishment, then 
capital punishment must be held unconstitutional.

What are the permissible objectives of the penal law! 
The Roman statesman and lawyer, Seneca, stated then 
succinctly in theory: “The law in punishing wrong aims at 
three ends—either that it may correct him whom it 
punishes, or that his punishment may render other men 
better, or that, by bad men being put out of the way, the 
rest may live without fear.” 8 Enlightened men have long 
recognized the cruelty of the motive of revenge. Plato, 
speaking through Protagoras, observed, “No one punishes 
those who have been guilty of injustice solely because they 
have committed injustice, unless indeed he punishes in a 
brutal and unreasonable manner. When anyone makes 
use of his reason in inflicting punishment, he punishes not 
on account of the fault that is past, for no man can bring it 
about that what has been done may not have been done, but 
on account of a fault to come, in order that the person 
punished may not again commit the fault and that his

8 Quoted in Commonwealth v. Bitter, 13 D. & C. 285 (1930).



11

punishment may restrain from similar acts those persons 
who witness the punishment.” 9

The maturation and implementation of the doctrine 
occurred in the context of the evils against which it is 
directed. Penal practices of various societies in history 
indulged the objective of revenge; tortures such as the 
rack, pillory, and thumbscrew existed until the recent past. 
Revenge through torture reached its zenith in England 
during the Stuart reign, and was perfected in burnings at 
the stake, breaking on the wheel, boiling in oil, drawing and 
quartering, and other ghastly acts. The English Bill of 
Rights of 1689 was a response to the atrocities;10 therein 
the phrase “cruel and unusual punishments” first appeared. 
The same phrase in the Eighth Amendment to the Con­
stitution apparently was an adoption from the English 
Declaration j11 the wording is exact.

The debate in the Congress upon the proposed amend­
ment included the objection of Mr. Livermore and fore­
shadowed the present case that comes nearly two centuries 
later. Said Mr. Livermore to his Congressional colleagues 
at work on the Eighth Amendment:

“It is sometimes necessary to hang a man, villains often 
deserve whipping and perhaps having their ears cut 
off; but are we in the future to be prevented from in­
flicting these punishments because they are cruel?” 
Cong. Reg. 225 (1791)

9 Ibid.
101 W. & M. 2, c. 2 S 10; see Weems v. United States, 217 U.S. 

349 (1910), and the dissenting opinion at 395-400; cf. 2 J. Story, 
Commentaries on the Constitution 623 (1873).

11 Ibid.



12

It was in the face of this objection that the Congress, and 
the states, passed and ratified the Eighth Amendment.12

Some courts and commentators have maintained that it 
was aimed solely at the practices of the Stuart regime in 
England.13 This ignores what this Court said in Weems 
after noting the Livermore colloquy:

“Legislation . . . should not, therefore, be necessarily 
confined to the form that evil had theretofore taken. 
Time works changes, brings into existence new con­
ditions and purposes. Therefore, a principle to be vital 
must be capable of wider application than the mischief 
which gave it birth.” Weems v. United States, 217 U.S. 
349 (1910).

A half-century later, this Court said: “The words of the 
[Eighth] amendment are not precise, and . . . their scope 
is not static. The Amendment must draw its meaning from 
the evolving standards of decency that mark the progress 
of a maturing society . . . ” Trop v. Dulles, 356 U.S. 86, 
(1958).

In both the English and American bills of rights, the 
cruel and unusual punishments clause is inextricably asso­
ciated with clauses prohibiting excessive fines and excessive 
bails.14 A punishment that is excessively severe is one that

12 Weems v. U. S., 217 U.S. 349, 369 (1910).
13 In re Kemmler, 136 U.S. 436, 446-447 (1890).
14 “But it is safe to assume that punishments of torture, such as 

those mentioned by the commentators referred to [Cooley, 
Const. Lim. 4th Ed. 408 ; Wharton, Cr. L. 7th Ed. §3405] and 
all others in the same line of unnecessary cruelty, are forbid­
den . . . ” by the Eighth Amendment, Wilkerson v. Utah, 99 
U.S. 130, 136.

“Torture is defined to be torment, judicially inflicted; pain by 
which guilt is punished or confession extorted; anguish; ex-



13

imposes retribution. The historical anod textual context of 
the Eighth Amendment as well as the Congressional intent 
as exemplified by Mr. Livermore’s contention, are all in­
corporated in the interpretation of the amendment that sees 
revenge as an impermissible objective of punishment.

Leading modern state courts agree that revenge is not a 
proper function or objective of state power.15 The Supreme 
Court of California has held that lighter punishment pre­
scribed by the legislature subsequent to the criminal act 
but before final judgment should prevail as against the 
heavier, previously prescribed punishment, In re Estrada, 
63 Cal. 2d 740, 745 (1965) and in explanation quoted from 
the similar New York case of People v. Oliver, 1 N.Y.2d 152, 
134 N.E.2d 197, 201 (1956), where Judge Fuld said:

“According to the best modern theories concerning the 
functions of punishment in criminal law, the punish­
ment or treatment of criminal offenders is directed 
toward one or more of three ends: (1) to discourage 
and act as a deterrant upon future criminal activity, 
(2) to confine the offender so that he may not harm 
society, and (3) to correct and rehabilitate the offender. 
There is no place in the scheme for punishment for its

treme pain; anguish of body or mind”, State v. Pugh, 15 Mo. 
509 (1851).

“Torture is the act or process of inflicting pain, especially as a 
punishment or in order to extort confession or in revenge”, 
People v. Ileslen, 163 P.2d 21 (1945).

15 See also: Rudolph v. Alabama, 375 U.S. 889 (dissenting opin­
ion of Justice Goldberg), In re Smigelski, 30 N.Y. 513, 154 A.2d 1 
(1959) ; People v. Ketchel, 59 Cal.2d 50; Holmes, The Common Law 
42, 46; M. R. Cohen, Law and the Social Order 310; Michael and 
Weehsler on Criminal Law and Its Administration 6 (1940) ; 55 
Col. L. Rev. 1039, 1052; 34 So. Cal. L. Rev. 286; 36 N.Y.U. L. Rev. 
110, 117; 31 N.Y.U. L. Rev. 1378, 1381.



14

own sake, the product simply of vengeance or retri­
bution.”

Mr. Justice Brennan, concurring in Trop v. Dulles, 356 U.S. 
86, expressed similar sentiments.

B. T he Death P enalty I s U nrelated to P ermissible Ob­
jectives.

Having established the permissible objectives of pun­
ishment in the context of the Eighth Amendment, the ques­
tion then is whether the death penalty is rationally 
connected to one or more of those objectives, namely, de­
terrence of future crime, isolation of dangerous individuals 
from society, or rehabilitation of criminal personalities.

It is obvious that death can in no way rehabilitate.
While death does “isolate” a dangerous individual from 

doing further harm, it is manifest that imprisonment for 
life accomplishes the same end equally well.16 Life im­
prisonment affords an opportunity to rehabilitate. It does 
not entail irretrievable decisions as to guilt as does the 
death penalty. Life imprisonment avoids presenting physi­
cal violence of the state as an official example.

There is no evidence that the death penalty offers any 
additional deterrence over and above imprisonment. This 
is made clear in the testimony of the criminologists and 
psychiatrists who testified in the Thornton trial (Appendix 
A) and in the fact brief on the subject of deterrence (Ap­
pendix D) which reviews the published works of the major 
authorities on that subject in the United States.

18 Kamsey Clark: “Modern penology with all its correctional re­
habilitation skills affords greater protection to society than the 
death penalty which is inconsistent with its goals.” Speech, July, 
1965.



15

Briefly, the uncontroverted evidence—largely statistical 
—shows that no lowering of the criminal homicide rate 
occurs in those states in which the death penalty is a punish­
ment for murder as compared to those States which do not 
provide the death penalty ;17 there is no evidence of greater 
incidence of criminal homicides committed on police or 
prison guards in States that have abolished the death 
penalty as compared to States that have retained it ;18 com­
parisons between neighboring states with similar cultural 
and ethnic characteristics show no significant difference in 
criminal homicide rates resulting from one of the states 
retaining capital punishment and the other state having 
abolished it;19 in states which have abolished and then re­
stored, or restored and then abolished capital punishment, 
no significant change has occurred in the criminal homicide 
rate, and similar findings have been reported for entire 
nations;20 increases in homicide rates are associated with 
the days immediately following well-publicized acts of 
violence, including executions ;21 and reduction of the rate 
of criminal homicides depends on factors other than the 
presence of the death penalty.22

“[T]he constitutionality of a statute predicated upon the 
existence of a particular state of facts may be challenged by 
a showing to the court that those facts have ceased to exist.”

17 See Appendix D, pp. 73a-74a.
18 See Appendix D, pp. 79a-83a.
19 See Appendix D, p. 78a; Appendix A, Testimony of Thorsten 

Sellin, People v. Thornton, 9a-10a.
20 See Appendix D, pp. 74a-76a.
21 See Appendix D, pp. 86a-89a.
22 See Appendix D, pp. 72a-86a.



16

U. S. v. Carotene Products Co., 304 U.S. 144 (1938); see 
also Brown v. Board of Education, 347 U.S. 483, 489 f .4, 494 
f.ll. (1954). In view of this contemporary uncontroverted 
evidence, it is emphasized that no state of facts, either 
known or which could reasonably be assumed, affords sup­
port for the proposition that the death penalty is a deter­
rent to the kinds of crimes for which it is the punishment, as 
opposed to imprisonment. Clearly, then, the death penalty 
does not serve the objectives of rehabilitation, isolation or 
deterrence.23

C. T he Contemporary Context of J udicial Review of 
Death P enalty Statutes: New Developments

The death penalty has been referred to by this Court—in 
occasional dicta—as constitutionally permissible. (We 
stress that no decision has been made under the Eighth

23 Thorsten Sellin, eminent sociologist and penologist and fore­
most authority in his field on the issue of deterrence and the death 
penalty:

“I have attempted to show that, as now used, capital punish­
ment performs none of the utilitarian functions claimed by its 
supporters, nor can it ever be made to serve such functions. 
It is an archaic custom of primitive origin that has disappeared 
in most civilized countries and is withering away in the rest.

“If an intelligent visitor from some other planet were to 
stray to North America, he would observe, here and there and 
very rarely, a small group of persons assembled in a secluded 
room who, as representatives of an all-powerful sovereign 
state, were solemnly participating in deliberately and artfully 
taking the life of a human being. Ignorant of our customs, he 
might conclude that he was witnessing a sacred rite somehow 
suggesting a human sacrifice. And seeing our great universi­
ties and scientific laboratories, our mental hospitals and clinics, 
our many charitable institutions, and the multitude of churches 
dedicated to the worship of an executed Saviour, he might well 
wonder about the strange and paradoxical workings of the 
human mind.” Sellin, Capital Punishment (1967), p. 253.



17

Amendment.)24 What, within the court’s competence, is 
different now from when these comments were made and 
from when the Eighth Amendment was ratified?25

First, at the time of ratification of the Bill of Rights, the 
penal system in America was poorly developed.26 Of the 
legitimate ends of penal administration, the objective of 
isolation of dangerous individuals from societj7 could only 
be effectively furthered by the execution of dangerous indi­
viduals. At common law, all felonies were punishable by 
death (probably in part for this reason) and in the United 
States at the time of ratification, numerous crimes were 
still punishable by death. Since ratification, our penal sys­
tem has developed into a reliable institution, effective in 
removing dangerous individuals from society.

Second, reliable empirical information about the death 
penalty in terms of its cruelty,27 its actual effect as a

24 Trop v. Dulles, 356 U.S. 86; State ex rel. Francis v. Besweber, 
329 U.S. 459; In re Kemmler, 136 U.S. 436.

25 The most obvious new development, of course, is the 1962 hold­
ing of this Court in Robinson v. California, 370 U.S. 660, that for 
the first time made the Eighth Amendment’s commands applicable 
to the States.

26 See Appendix B, pp. 59a-65a, a short history of prisons.
27 Testimony of Dr. Louis Jolyon West, People v. Thornton, re­

produced in Appendix A infra, pp. 40a-41a, is cogent here:
“Q. Have you had occasion to consider the relationship be­

tween physical and mental pain, that is, between the impact 
of stress on the body as such and that of stress, fear, the ex­
pectation of death, the anxieties involved on the other—have 
studies been made that would shed light on the relationship 
between these two phenomena? And if so, are you familiar 
with these studies? A. Yes, I am familiar with those studies. 
I have carried out such studies myself. It is possible to meas­
ure the degrees of intensity of physical pain through the use 
of objective instrumentation. The Hardy-Wolff-Goddell ap-



18

paratus for measuring the intensity of noxious stimulation and 
the subjective responses to it, make it possible to define ap­
proximately 21 increments of discernible change and pain ex­
perience. These have been put together into a scale, a so-called 
Dol Scale, which has ten and a half points, each containing 
two increments. When you reach ten and a half Dols of pain­
ful stimulus, it can’t  hurt any more than tha t; that’s the maxi­
mum amount of pain a person can feel, and increasing the 
amount of painful stimulation, whether it be burning or pres­
sure on the bone and so on, does not produce an additional 
degree of pain. It has been my experience that certain indi­
viduals who are actually subjected to torture, knowing about 
this and having been engaged in such experiences, as in a 
laboratory—I am thinking now here of certain physicians who 
were trained with Dr. Wolff and then who were subsequently 
captured, first by the Japanese and later in Korea, and sub­
jected to some very painful stimulation, found comfort in the 
knowledge that things could only hurt so much. Biologically 
there was a limit, and they knew what that limit vcas and 
were able to endure.

Whereas in the psychological sphere, the type of anguish 
that comes from knowledge that there are others in whose 
hands we are helpless, who will when the time comes destroy 
us, doesn’t seem to have any limit; there is no way to measure 
it; and I would regard such torture as more severe than any­
thing that could be inflicted by thumb screws, racks, or pain 
machines of the kind we use in the laboratory.

Q. To what extent, Doctor, in your professional opinion, can 
the application of the mental stress, the mental pain that you 
have mentioned, be a factor in causing insanity? A. Well, I 
believe that it can be causative of mental illness either tem­
porarily or permanently, and that this indeed takes place in 
Death Row types of situations all the time. That doesn’t mean 
in all cases, but that it is going on all the time, as long as 
you’ve got a Death Row . . . ”

Chaplain Byron E. Eshelman, Supervising Chaplain at San Quen­
tin Prison, 1951-present, describes the execution of Leandress Riley:

“A guard unlocked his cell. He gripped the bars with both 
hands and began a long shrieking cry. It was a hone chilling, 
wordless cry. The guards grabbed him, wrested him. violently 
away from the bars. The old shirt and trousers wrere stripped 
off. His flailing arms and legs were forced into the new white 
shirt and fresh blue denims. The guards needed all their 
strength to hold him while the doctor taped the stethoscope in 
place. The deep-throated cry, alternating with moaning and 
shrieking, continued. Leandress had to be carried to the gas 
chamber, fighting, writhing all the way.” Eshelman, Death 
Bow Chaplain 160, Prentice 1962.



19

deterrent,28 and its side effects on the society,29 was virtu­
ally non-existent in the last century. As the sciences of 
criminology, penology, psychology, psychiatry, and soci­
ology have developed increasingly reliable indices of human 
behavior, social scientists have turned their attention to 
the institution of capital punishment and its effects upon 
the convict and his society. What they have illumined is 
an evil so monstrous in its effects on the convict and society 
that Arthur Koestler has said that whether one approves 
of capital punishment is the “test of one’s humanity . . . .” 30

Third, very recent developments in the protection of 
individual rights of the accused and increased safeguards 
from executions by mistake have enlarged the right of 
appeals and necessarily extended the time between 
sentencing and death. The mental torture of death row is 
an inseparable part of the death penalty today.31 Earlier 
decision-making by courts has not had the institution of 
death row and its implications to consider.

Fourth, as noted in the Introduction, supra, the concept 
of judicial notice has expanded so that evidence of social 
sciences is now within the scope of a court’s scrutiny.32

28 See Appendices A and D.
29 See Appendix D, pp. 86a-92a.
30 Witherspoon v. Illinois, 391 U.S. 510 (1968).
31 “But the chief and worst pain may not be in the bodily suf­

fering but in one’s knowing for certain that in an hour, and then 
in ten minutes, and then in half a minute, and then now, at the 
very moment, the soul will leave the body and that one will cease 
to be a man and that that’s bound to happen; the worst part of 
it is that it’s certain. . . .  To kill for murder is a punishment in­
comparably worse than the crime itself.” Dostoevsky, The Idiot 
19. See also Appendix C.

32 See note 7, supra.



20

Fifth, in line with developing information now available 
through the social and psychiatric sciences, courts have 
been giving increasing attention to mental suffering as a 
cruelty in and of itself.33 Simultaneously, the proliferation 
of lengthy waits on death row have created extreme mental 
problems in prisoners awaiting execution or reprieve.

Because of the requirement that the condemned be 
legally sane at the time of his execution, it is not uncommon 
for inmates of the row to be removed for psychiatric treat­
ment (including extensive electric shock therapy) to restore 
them to their senses for their execution (an indication of 
the intention of the State to prevent the condemned, if 
possible from escaping into insanity).84 Here, then, is “some­
thing more than the mere extinguishment of life.” 35 The 
mental anguish and suffering inflicted on a convict waiting

33 f r0p y Billies, 356 U.S. 86 (1958):
“Since Chambers v. Florida, 309 U.S. 227, 84 L. Ed. 716, 60 
S. Ct. 472, this court has recognized that coercion (of con­
fessions) can be mental as well as physical, and that the blood 
of the accused is not the only hallmark of an unconstitutional 
inquisition. A number of cases have demonstrated, if demon­
stration were needed, that the efficiency of the rack and thumb­
screw can be matched, given the proper subject, by more 
sophisticated modes of persuasion.” Blackburn v. Alabama, 
361 U.S. 199 (1960).

34 There have been persons on Death Row who needed psychiatric 
treatment and who were removed from Death Row to the hospital 
for psychiatric treatment, including electric shock, to remove 
borderline mental illness so that they could be returned to Death 
Row so that they would know what was happening to [them] 
when [they were] being executed. Approximately two dozen men 
have been so treated. The prisoner must know the crime he com­
mitted for which he is sentenced to execution. Summary of 
Testimony, Dr. Schmidt, San Quentin Prison State Psychiatrist, 
in People v. Thornton, R.T. 394, 396-397, 400.

35 In re Kemmler, 136 U.S. 436 (Dictum) :
“A good many of these doomed men end up in the hands 

of the psychiatrist. The strain of existence on Death Row



21

D. I rrationality and U nconstitutionality

The death penalty, arguendo, may have been legitimate 
in times past, when alternative means of isolation were 
unavailable or unreliable, when ideas of its deterrent effect 
were based solely upon intuition in the absence of any 
sociological evidence whatsoever, when judges were unable 
to base decisions on social sciences, when execution was

is very likely to produce behavioral aberrations ranging from 
malingering to acute psychotic breaks. In most states the 
warden will transfer such a person to the psychiatric unit of 
the prison or the security area of a mental hospital. Here the 
prisoner is not unlikely to pass the rest of his days as a mem­
ber of that vaguely defined population, ‘the criminally in­
sane.’ ”

West, Scientific Reflections on the Death, Penalty, Center 
for the Study of Democratic Institutions, Santa Bar­
bara, California, 1967.

Warden Clinton T. Duffy, San Quentin Prison 1940-1951:
“Once in a while, under the pressure of a tremendous fear, a 
condemned man loses his mind before execution time. The 
California law holds that no man can be put to death unless 
he knows why his life is being taken and understands the dif­
ference between right and wrong. In short, he must be legally 
sane. There is a grim irony in this stipulation, because uurmg 
those last dreadful hours of suspense the responsibility for 
gauging a man’s mind and his thoughts lies with me. How 
can I know when a man is insane! Is he insane because he 
will not eat or sleep or because he talks hysterically? Is he 
insane because he behaves strangely in the face of death? I 
don’t know.” Duffy, Warden Clinton T., The San Quentin 
Story 81 (1951).

Joseph D., Lohman, Dean of the School of Criminology, Uni­
versity of California, 1961-1970:

“When sheriff of Cook County (Chicago), Illinois, I had occa­
sion to observe the day-to-day life of inmates on Death Row. 
I visited the Death Row at the Cook County jail sometimes 
daily, never less than once or twice a week. I observed evi­
dence of anguish on the part of inmates of Death Row, as 
well as evidence of mental' illness. I was advised of attempted 
suicides, and we kept a constant twenty-four-hour guard on



22

swift, sparing the condemned the anomie of death row, 
when onr knowledge of the human psyche and its infinite 
capacity for mental anguish was primitive.86 Perhaps in an 
earlier century there was a basis in human reason for a 
legislature to believe that the death penalty served the 
legitimate penal ends of isolation and deterrence without 
unnecessary cruelty. But times have changed, and such 
cannot be said today.37 The death penalty is cruel in view 
of such factors as the physical and mental anguish of 1,000 
days on death row and the execution transaction, and serves 
only the illegitimate penal objective of revenge or retribu­
tion. It ought therefore to be held unconstitutional.

duty with a view to avoiding that eventuality. There was a 
disposition toward suicide by some of the inmates.

I observed changes in the mental condition of inmates on 
Death Eow. Some of those changes were physical deteriora­
tion of the men, rejection of food, withdrawal of the men, 
plaintive and almost childlike pleas, progressing and develop­
ing as execution date approached; the complete disintegration 
of the personality of the individual.

The sequence of events started with an unbelief that this 
could have happened to them and that some agency would 
intervene to upset the whole procedure, desperate, plaintive 
pleas for help, development of psychosomatic or psychological 
care and administration which attained a more frequent and 
finally the complete withdrawal of the individual, quite often 
huddling in a corner, unable to locomote even about the cell 
in many cases.” Summary of Testimony, Dean Lohman, in 
People v. Thornton, E.T. 583, 585.

36 See fn. 27, supra.
37 Some legislatures have abolished the death penalty only to 

reinstitute it at a later date. Frequently, the re-institution of 
capital punishment is provoked by a notorious and heinous crime, 
and is legislated with dismaying swiftness. In Delaware, for ex­
ample, the cruel beating and murder of an 89 year old woman in 
1961 led to a bill which re-instituted the death penalty. State 
Senator James H. Snowden of Wilmington declared it to be 
“panic legislation” that was motivated by emotion and revenge, 
but the bill passed nevertheless over the veto of Governor Elbert



23

II.

C ruelty  in  Context

The Cruel and Unusual P unishments Clause I s a F unda­
mental P rotection oe I ndividual R ights. T he W idespread 
Disenfranchisement and E xtreme I solation of P risoners 
on Death R ows P revents the Condemned Man F rom 
E ffectively Appealing to Majoritarian I nstitutions for 
E nforcement of H is Constitutional R ights. Scrutiny I s 
T herefore R equired, Guided by the F ollowing:

A. The Death P enalty, Clearly Suspect U nder the 
E ighth A mendment, I s U nnecessary in  a Society W ith  
Adequate Alternative Means of F ulfilling the 
Legitimate Objectives of the P enal L aw. I t I s T here­
fore Unconstitutional.

B. T he Death P enalty and the Necessarily A ssociated 
E xperience of Death R ow Shocks and Devastates the 
Consciences of Civilized Men . I t I s T herefore Un ­
constitutional.

N. Carvel. In returning the bill to the legislature, Governor Carvel 
remarked, “The lack of useful purpose of the death penalty has 
been the basis for the almost universal condemnation of its use 
by the church bodies in the United States and throughout the 
world upon the ground that revenge and brutality can have no 
place in a morally oriented society and that society can be pro­
tected by other means than the taking of a human life . . . The 
function of the criminal law is to protect the law-abiding 
and not to fulfill a lust for revenge. Anything that tends to asso­
ciate the law with the idea of vengeance impairs its dignity and 
subtracts from the aspect that intelligent people accord it.” In 
Herbert L. Cobin, “Abolition and Restoration of the Death Penalty 
in Delaware”, The Death Penalty in America, ed. Hugo Bedau 
(Chicago, 1964) pp. 366-371.



24

A. F undamental P rotection

The Eighth Amendment occupies a fundamental place in 
the American system as a protection of individual liberties 
against the evils of unlimited government. The rule of 
civilized law requires limits upon government and the 
Eighth Amendment is one of them. The cruel and unusual 
punishments clause has been a fundamental guarantee of 
the Anglo-American legal system since 1689 and, as such, 
deserves nothing less than vigorous enforcement.

In 1904, the Court had held that only the most funda­
mental provisions of the American Bill of Bights applied 
to an unincorporated territory. Dorr v. United States, 195 
U.S. 138. Six years later in Weems, the Court applied the 
cruel and unusual punishment principle to the unincor­
porated Philippine territory, considering the provision to be 
“essential to the rule at law and the maintenance of indi­
vidual freedom,” 217 U.S. 349, 367.

Thus, the Eighth Amendment is a fundamental protection 
of individual rights, now embraced by the Fourteenth 
Amendment, and effective upon State as well as territorial 
governments, and, “essential . . .  to individual freedom.”

B. Cruelty

The death penalty is substantially different from all 
other penalties commonly imposed upon criminals. Its 
uniqueness is partly in its inherent destructiveness of the 
high objective of criminal sanctions—rehabilitation. The 
1,000 or more days of tension, anxiety, and mental torture 
on death row constitute an experience inseparable from the 
execution itself.

Dr. Louis Jolyon West, an eminent psychiatrist, has 
testified as to the mental torture of the death row ex-



25

perienee.38 After testifying that mental pain has no limit 
within the knowledge of his discipline whereas there is a 
definite and scientifically measurable limit to physical pain,39 
Dr. West compared the two:

“Q. Does that mean that any conclusion can be 
drawn as to the comparative relationship between that 
physical pain which might be induced by physical 
torture and, on the other hand, a mental pain which 
might be induced by the pendency of death, one or the 
other? A. What it suggests is that ultimately at least 
the degree of suffering involved in mental pain is 
capable of being greater in terms of human experience 
than that involved in this kind of physical tor­
ture . . . 40

Dr. West also testified to the comparative anguish induced 
by the loss of citizenship and the death row experience:

“Q. The case cited in 1959 by the United States 
Supreme Court, of Trop v. Dulles, and in which the 
punishment was the creation of statelessness, depriva­
tion of citizenship, to which the court said the punish­
ment was illegal because, among others, trying to 
subject an individual to an ever increasing amount of 
fear and distress, and now can you compare, Doctor, 
based upon your understanding, your experience, your

_38 The complete testimony of Dr. West is reproduced as Appen­
dix A, pp. 31a-65a. Dr. West was professor and head of the 
Department of psychiatry, Neurology and Behavioral Sciences, 
University of Oklahoma School of Medicine.

39 See footnote 27, supra; Appendix A, pp. 40a-42a.
40 Testimony of Dr. West, People v. Thorton, Superior Court, 

Los Angeles, reproduced in Appendix A, p. 42a.



26

clinical evaluations and your readings, is this kind of 
degradation of fear and distress imposed upon a Death 
Bow inmate, how is it as compared to that imposed in 
this case of this kind that I have described? A. I 
would regard it as substantially greater; in other 
words, while depriving the person of his citizenship 
suggests a terrible loss of support by the parent 
society, the Death Bow situation employs not only loss 
of support but the ultimate threat by the parent 
society, namely that of destruction. There are many 
reasons based upon research and human development 
that I believe this is the most severe stress that is 
possible for a human being to experience.” 41

The former Warden of San Quentin Prison (1940-1951), 
Clinton T. Duffy, unequivocally condemned the death 
penalty.42 Duffy said,

“In connection with my prison work at San Quentin, I 
have observed 150 executions . . .  I would say in my 
experience the average time an inmate spends on 
death row is about three years . . .  I have a definite 
opinion that the procedures and practices resulting in 
the execution of persons in California is cruel. I have 
always felt it . . . The inmates are undergoing the 
tension of naturally they are going to undergo execu­
tion (sic), and they have to be under custody at all 
times during this pending execution, the thought that 
they are going to be executed and the date is arriving, 
getting closer and closer, and the fears and the concern

41 Testimony of Dr. West, People v. Thornton, Superior Court, 
Los Angeles, Appendix A, pp. 42a-43a.

42 Testimony of Warden Duffy, People v. Thornton, R.T. 4, 8.



27

and the emotions they are building up are real cruel. 
I have known them on death row to become so involved 
emotionally that they have committed suicide . . . ” 43

Chaplain Byron E. Eshelman, supervising chaplain at 
San Quentin Prison since 1951, describes the execution of 
the last man to die on San Quentin’s Death Row:

“We have had other situations of rather violent 
resistance and one of the most recent executions which 
we had, which was April 12 of this year [1967] and 
this was in the execution of Aaron Mitchell, there were 
violent aspects to his resistance and while not as vio­
lent as in Mr. Riley, but this again to me was a cruel 
and highly disturbing episode.

This man developed a bizarre behavior in the last 
hours of his life and he took off all his clothes and he 
cut his arm with razor blades and when I came down 
to the holding cell to administer to him, as I was the 
Chaplain of record, and it was my responsibility to 
administer to this man at the last, he was standing 
naked at the end of his cell and in a crucifix form with 
his hands out to the side and his feet together and this 
blood was dripping down his arm and I said to him, 
‘Aaron, do you know m ef He said, ‘You are not Jesus,’ 
and I said, ‘No, I am not Jesus,’ and I told him who I 
was and at this second he took his right hand and wiped 
the blood on his left arm and he said, ‘This is the 
blood of Jesus Christ. I am the second coming to save 
the world from sin,’ and he kept that position through­
out this time and he wTas indicating words, but, of 
course, the doctor told me that during the night he

4311 id.



did sit down and he did get a little sleep but the next 
morning he was back in the same position.

When it came time to dress him he resisted and he 
said that he didn’t want to be bothered. Then he had 
to be manhandled and put on the wheelchair and we 
had to wipe the blood off his face and arms and tried 
to get him to look presentable and then he made a 
loud shreik, about the worst I ever heard anyone make, 
and then he fell back on the cot and then began to 
shreik like in a convulsion but then the officers had 
to bring him to his feet. He went almost limp and he 
didn’t resist anybody from then on but we had to wait 
until the Warden gave the signal to bring him in. I 
walked ahead of him and tided to comfort him and con­
sole him and say a prayer but he didn’t seem to register, 
but when they strapped him in or put him in, he said, 
or he cried out, ‘I am Jesus Christ,’ and the execution 
proceeded then with this man in this particular state 
of mind.” 44

The death penalty is cruel and is more than suspect under 
the Eighth Amendment. Once this is accepted, the burden 
should be upon the state to show that the death penalty is 
necessary to accomplish a permissible end of state punish­
ments.

C. T he Heath P enalty I s an'U nnecessary 
E xercise of the P enal P owter

This Court has condemned the infliction of unnecessary 
pain in the execution of the death penalty.45 The infliction

44 Summary of Testimony, Chaplain Eshelman, in People v. 
Thornton, Los Angeles Superior Court No. 328,445, R.T. 90-92.

45State ex rel. Francis v. Resweber, 347 U.S. 483 (1947).



29

of the death penalty has never been heard or ruled upon 
under the Eighth Amendment. As early as 1879, the Court 
foresaw the feasibility of applying the test of necessity to 
punishments of torture and like evils:

“ it is safe to affirm that punishments of torture, such 
as those mentioned by the commentators referred to, 
and all others in the same line of unnecessary cruelty, 
are forbidden by that amendment to the Constitution, 
Cooley, Const. Lim. 4th Ed. 408; Wharton, Crim. Law. 
7th Ed. 3405,” Wilkerson v. Utah, 99 U.S. 130.

In recent years, several lower courts have employed the 
test of necessity under the cruel and unusual punishments 
clause.

“Does the punishment go beyond what is necessary to 
achieve the aim of the public intent as expressed by 
the legislative act? If it exceeds any legitimate penal 
aim, it is cruel and unusual,” Workman v. Common­
wealth, 429 S.W.2d 374 (Ky. 1968).

Judicially noticeable facts show that imprisonment in a 
modern penal institution accomplishes the end of insulation 
at least equally well without destroying all hope of rehabili­
tation, and that there is no evidence to support a contention 
that the death penalty is a special further deterrent to 
crime over imprisonment and other penalties.46

The adequacy of life imprisonment as a complete alterna­
tive to the death penalty was recognized by Beccaria (Ce- 
sare Bonesana) as early as 1764. In his famous essay on 
Crime and Punishment, he wrote:

46 See Appendixes A and D.



30

“In order that a punishment be just it should have only 
the degree of intensity sufficient to keep men from 
committing crimes. No one today, in contemplating it, 
would choose total and perpetual loss of his own free­
dom, no matter how profitable a crime might be. There­
fore, the intensity of the punishment of perpetual servi­
tude as a substitute for the death penalty possesses 
that which suffices to deter any determined soul.” 47

Beccaria’s position on capital punishment was not 
adopted by the political leaders of the Enlightment; and 
not without reason, for the existence of reliable penal re­
formatories is a relatively late development in history. The 
first state prison was opened in Pennsylvania in 1829; the 
movement did not become widespread until the end of the 
19th century.48 Experimentation and development of ef­
ficiency in the maintenance of reformatories took still more 
time, so that it is only recently that prisons can be con­
sidered reliable in protecting society from the most desper­
ate convict.

Modern statistical studies tend to support Beccaria’s 
belief that imprisonment is an adequate alternative to the 
death penalty.

In terms of the isolation of dangerous individuals, the 
Pennsylvania Board of Parole Study found in 1968 that 
of those felons who had previously been incarcerated, mur­
derers are less likely to have had records of escapes or 
other prison infractions; 90% of murderers with prior

47 Cesare Beccaria, “On the Death Penalty”, from a 1764 
Treatise, Dei Delitti E Delle Dene, as in : Capital Punishment, 
Thorsten Sellin, Ed. p. 41 (N.Y. 1967).

48 See Appendix B for a more extensive history of prisons.



31

incarcerations compared with 79% of non-murderers had 
no prior record of escapes or other prison infractions.49 
Thus there is no reason to believe that convicted murderers 
are more prone to escape, create discipline problems, or 
otherwise deviate from the norm of behavior in a maximum 
security prison.

Statistical and other sociological studies on the deterrent 
factor of the death penalty as compared to life imprison­
ment are abundant and virtually uniform in their conclu­
sion that there is “no positive relationship between homi­
cide rates and the existence or non-existence of the death 
penalty, executions or no executions and the homicide 
rates” (Testimony of Dr. Thorsten Sellin, People v. Thorn­
ton, Los Angeles Superior Court R.T. 14-15).50

“In general, when the homicide rate in states which au­
thorize the death penalty is compared with the homicide 
rates in other states, it is found that the former states have 
homicide rates two to three times as great as the latter,” 
Sutherland and Cressey, Principles of Criminology 292 (5th 
Ed. 1955). Moreover, there is no study which concludes that 
the death penalty is more effective in deterring capital 
offenses than imprisonment. See, for example, Schuessler, 
“The deterrent influence of the Death Penalty,” 284 Am. 
Journ. Pol. and Soc. Sci. 54 (1952); Sellin, Ed., Capital 
Punishment 135, 294 (1967); Gibbs, Suicide 517 (1968).51

49 Reprinted in Cal. Legis. Assembly Comm, on the Admin, of 
Justice, Report, 3-12 (1970).

50 Reprinted in Cal. Legis. Assembly Comm, on the Admin, of 
Justice, Report, 3-12 (1970).

51 An extensive discussion of the social science studies on sub­
ject of the death penalty with special emphasis on the question of 
deterrence is presented as Appendix D.



32

Other comparisons between abolitionist and retentionist 
states show no significant difference in the rehabilitation 
success rate of paroled murderers. This is significant be­
cause a second conviction for murder carries a certain death 
sentence in retentionist states. Any deterrent value pos­
sessed by the death penalty would be expected to manifest 
itself more in this kind of study than in any other:

“In the eight states, cited here only because of the 
availability of parole data (California, Connecticut, 
Maryland, Massachusetts, Michigan, Ohio, New York, 
and Rhode Island), we find that of some 1,158 mur­
derers paroled, six committed another murder and nine 
others committed a crime of personal violence short of 
murder or a felony. The record of successes shown by 
the two abolitionist states (Michigan and Rhode Island) 
is certainly equal to that of the six states which retain 
the death penalty. Indeed, of the eight states, Califor­
nia is the only one with several cases where a murderer 
was released and killed again,” Bedau, The Death 
Penalty in America 399 (1967). See also California 
Legislature Assembly Committee on the Administra­
tion of Justice, Report 3-12 (1970).

Other studies show that temporary abolition of the death 
penalty with later re-introduction produces no change in 
the homicide rates.52 Studies in abolitionist states show no 
change in homicide rates before and after the abolition of 
the death penalty.53

52 Selim, ed., Capital Punishment 122 (1967).
53 Sutherland and Cressey,. Principles of Criminology 295 

(6th Ed. 1960); Gibbs, Suicide 517.



33

It may be concluded on the basis of all studies conducted 
by social scientists on the subject of deterrence by threat 
of execution that there is no evidence to support the propo­
sition that the death penalty deters the commission of capi-. 
tal offenses any more than does long imprisonment. Any 
conclusion that deterrence is a function of capital punish­
ment must be based on anecdotes, intuition, emotion, or the 
mere opinion of police and prosecutors. In an age when 
such scientific studies are abundant and uncontroverted, it 
is unreasonable and irrational to consider the death penalty 
to be a deterrent with the alternative of imprisonment 
readily available.

In holding that cadena temporal, when imposed for the 
crime of falsifying a public record, was excessive and un­
constitutional under the cruel and unusual punishments 
clause, the Court said:

“The State thereby loses nothing and loses no power. 
The purpose of punishment is fulfilled, crime is re­
pressed by penalties of just, not tormenting, severity, 
its repetition is prevented, and hope is given for the 
reformation of the criminal,” Weems v. U.S., 217 U.S. 
at 381.

D. T he Death P enalty Shocks the Conscience oe 
Contemporary Civilized Men

Many Courts have interpreted the cruel and unusual 
punishments clause to mean that those punishments are. 
unconstitutional which “shock the conscience of civilized 
men,” State v. Evans, 73 Idaho 349, 121 P.2d 326; Stephens 
v. State, 73 Okla. Cr. 349, 245 P.2d 788; State v. Ross, 
55 Or. 450, 104 P. 596; Mickle v. Henrichs, 262 F. 687 
(D. Nev.); Harper v. Wall, 85 F. Supp. 783 (D. N .J.);



34

Politano v. Politano, 146 Mise. 792, 262 N.Y.S. 802; Mc­
Donald y . Commonwealth, 173 Mass. 322, 53 ISLE. 874; 
State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273; Fowling 
v. State, 151 Fla. 584, 10 So.2d 130; State ex rel. Garvey 
v. Whitaker, 48 La. Ann. 527, 19 So. 457; Williams v. 
Field, 416 F.2d 483 (9th Cir. 1969); Jordan y . Fitzharris, 
257 F. Snpp. 674 (N.D. Cal. 1966).

The former warden of San Quentin Prison, Clinton T. 
Duffy, describes his experiences while supervising death 
row:

“In connection with my prison work at San Quentin, 
I have observed 150 executions. I have supervised the 
execution of 88 men and 2 women. I would say my ex­
perience is that the average time an inmate spends on 
Death Row has been about three years . . .

I hate the death penalty because of its inhumanity. 
Doomed men rot in a private hell while their cases are 
being appealed, and they continue to rot after a death 
date is set. They live in the company of misery, not 
only their own but their neighbory. They know there 
are two roads out of Death Row, and that they might 
well have to take the one which leads to the gas cham­
ber.

One night on death row is too long, and the length 
of time spent there by the Chessmans and many others 
constitutes cruelty that defies the imagination. It has 
always been a source of wonder to me that they didn’t 
all go stark, raving mad.

The men of Death Row live in fear and hopelessness, 
and their thoughts are never off the glass-walled en­
closure that waits for them six floors below. This is



35

not justice but torture, and no court in the land will 
delibately sentence a defendant to that.

I hate the death penalty because it is a brutal spec­
tacle. There is nothing good about an execution and 
no one is satisfied when it is over. Even those who say 
that justice has been served leave the death house white 
and shaking and determined never to return.” 54

Dr. William Francis Graves, former Death Row physi­
cian at San Quentin, describes the effect of the experience 
on the inmates:

“Coinciding with the arrival of men on Death Row, 
there developed a very steady deterioration mentally 
and physically. I think that in regard particularly of 
Henry Ford McCracken, who I feel probably was 
microcephalic to start with. He deteriorated very 
rapidly during the months that I observed him on 
Death Row, mentally and physically. Finally, he be­
came impossible to communicate with and on one occa­
sion I found him wallowing in his cell in his own ex- 
cretum, just babbling, and I transferred him to the 
prison hospital where, under the direction of Dr. David 
Schmidt, he was given electric shock therapy and fi­
nally after a series of such treatments, he recovered 
sufficiently so that his execution could be legally ar­
ranged ; so that he had recovered mentally to the point 
where he could appreciate the fact that he was being 
punished and therefore be legally executed.” 55

Byron Eshelman, San Quentin’s chaplain, describes the 
double execution of Pierce and Jordan in 1956:

54 Duffy, Clinton T., 88 Men and Two Women, 254.
56 Testimony of Dr. Graves, People v. Thornton, pp. 147, 154-56.



36

“A few minutes before ten the next morning, Father 
Dingberg approached Pierce’s Holding Cell. The con­
demned man was covering his face with his hands; the 
Father thought he was praying, or trying to catch a 
moment of rest.

Suddenly, Pierce lowered his hands and grinned up 
at Father Dingberg. Blood was pulsing from his neck. 
Dr. M. D. Willicut, San Quentin’s chief medical officer, 
and Claude Lansing, a lieutenant of the guards, hur­
ried into the cell. Pierce tried to fight them off, slug­
ging, scratching, and biting. They pinioned his arms, 
discovered a four-inch gash across the right side of 
his throat all the way up to the ear.

After a quick conference, Warden Teets ordered the 
four guards to drag Pierce from the Holding Cell and 
carry him to the gas chamber. Jordan was supposed 
to have gone first, as a reward for good behavior, but 
Pierce couldn’t be kept waiting now. He fought all the 
way down the corridor, screaming:

‘Lord, I ’m innocent! You know I ’m innocent!’ 
Forty-seven witnesses were gathered outside the gas 

chamber windows as Robert Pierce was carried inside. 
Blood was spraying from his neck.

‘I ’m innocent!’ he screamed at the witnesses. ‘Don’t 
let me go like this, oh, God!’

Two of the witnesses got sick and had to leave.
While he battled against being strapped into the 

chair, Pierce alternately cursed, wept and asked for 
divine blessing. Then, suddenly, he appeared to relax.

A moment later he was hoarsely screaming curses at 
God, the witnesses, the guards.

Jordan was brought in. He looked down at his crime 
partner, dying even before the cyanide pellets were 
dropped. ‘I t’s o.k.,’ he said, half to himself.



37

Pierce kept up his screaming. He threw back his 
head, twisting to show his mutilated throat to the wit­
nesses. His white shirt was soaked with blood.

The door was firmly shut, the pellets dropped.” 56

San Quentin’s Roman Catholic chaplain, Father Ding- 
berg:

“When I use the term ‘piecemeal dying’ in reference 
to the men on Death Row, I mean the following:

I would say that a man on condemned row dies, as I 
observe it, daily, weekly, and certainly if he had been 
in San Quentin for a protracted period of time, in 
terms of a loss of his sense of values, a withdrawing 
within himself to the point where relations would be­
come more and more difficult, all of which, as I saw, 
was the result of this constant element of lack of pri­
vacy, being affected by everything that happened to 
every other individual on the Row. For example, in 
the event a man who was with him on the Row were to 
be told that he. was to be executed on a certain day, 
that man in effect, by identifying would die with him 
even though perhaps his execution might be months, 
if not years, away.

Frankly, I believe that when a man finally is taken 
downstairs and the cyanide pellets were dropped, he 
already had been executed many, many times over.” 57

The following religious organizations support Father 
Dingberg and Chaplain Eshelman in their condemnation of

56 Testimony of Chaplain Eshelman, People v. Thornton, pp. 
162-63.

57 Testimony of Father Dingberg, People v. Thornton, pp. 643,
651. " - ■



38

capital punishment: Lutheran Church in America (1966); 
American Baptist Convention (1960); Church of the Breth­
ren (1957); Disciples of Christ (1957); Protestant Epis­
copal Church in the United States (1958); American Ethi­
cal Union (1960); Union of American Hebrew Congrega­
tions (1959); General Conference of the Methodist Church 
(1960); American Unitarian Association (1956); Universal­
is! Church of America (1957); Anglican Church of Cana­
da’s Executive Council (1958); United Church of Canada 
(1960); and innumerable state and local church organiza­
tions.58

Charles Dickens:
“You have no idea what the hanging of the Mannings 

really was. The conduct of the people was indescriba­
bly frightful, that I felt for a time afterwards almost 
as if I were living in a city of devils. I feel, at this 
hour, as if I never could go near the place again. Two 
points have occurred to me as being good commentary 
to the objections to my idea. The first is that a terrific 
uproar was made when the hanging processions were 
abolished and the ceremony shrunk from Tyburn to the 
prison door. The second is that, at this time, under the 
British government in New South Wales, executions 
take place within the prison walls, with decidedly im­
proved results.” 59

The execution and the experience on Death Bow are so 
well hidden from view that only such persons as Warden

58 Filler, “Movements to Abolish the Death Penalty in the 
United States,” cited in Sellin, Ed., Capital Punishment, N.Y. 
1967.

59 Dickens, “Letter to M. de Cerjat, December, 1849.”



39

Duffy, Dr. Graves, Father Dingberg, and Chaplain Eshel- 
man have an opportunity to know what capital punishment 
really entails. Indeed, Warden Duffy has written,

“To enforce the law should be a source of pride and 
satisfaction. Most men and women charged with these 
duties are dedicated individuals. Even though they 
often are grossly underpaid, they’re willing to make 
personal sacrifices for the good of the community. I ’ve 
heard many an official proudly declare after perform­
ing a brave and unselfish act, ‘I was glad to do it; it 
was only my job.’

I ’ve never heard anyone say, ‘I was glad to take part 
in this execution; it was only my job.’

Executions are held behind locked doors in dark, 
gloomy enclosures before a handful of witnesses, few 
of whom ever brag about what they have seen. No 
matter how eager their desire to watch a killer pay the 
penalty, their steps falter as they approach the execu­
tion chamber, their stomachs turn at what they see 
there, and they can’t get away fast enough after the 
spectacle is over. Except for a few officials, like the 
warden, the doctor, and the clergyman, the names of 
people who participate in an execution are never an­
nounced. The identity of the executioner is the most 
jealously protected of all, for this very title makes the 
flesh creep and the blood run cold. I never knew an 
executioner who admitted his profession to the outside 
world, either while he was active or after he retired.

If the death penalty were right and proper, it would 
be carried out in public places and anyone would be 
free to watch it. If it were a source of pride instead 
of shame, the participants would be heroes and the



40

condemned the villains they were meant to he. Instead 
it’s the other way around. A Caryl Chessman becomes 
a martyr and his executioner a pariah.” 60

Within this country, there are several dozen death rows. 
If and when the deaths—nearly 600 human beings are wait­
ing—are inflicted, the knowledge of that event will be in­
jected into the common culture, shared by the nation’s peo­
ple. Inevitably, the wholesale slaughter will be on the 
American conscience, first to shock, then to dull it; and, if 
the official slaughter continues, and if history is a guide, 
there will be a heightened appetite in some. Cruelty gen­
erates cruelty, and example is the most efficient teacher.

III.

U pon P ro o f o f T o rtu re

T he Basic Concept U nderlying the E ighth Amendment 
Is Nothing Less T han the Dignity of Man. W hile the 
State H as the P ower to P unish , the Amendment Stands 
to Assure T hat T his L imit Be E xercised W ithin  the 
L imits oe Civilized Standards, Trop v. Dulles, 356 II.S. 86, 
100 (1958).
T he A mendment Must Draw I ts Meaning F rom the 
E volving Standards or Decency T hat Mark the P rogress 
op a Maturing Society, Trop v. Dulles, 356 U.S. 86, 101 
(1958).

60 Duffy, 88 Men and Two Women, 20.



41

TIT. The cruel and unusual punishments clause prohibits 
the torture of persons convicted of crimes. I f  the 
petitioner sustains the burden of proving that the 
death penalty constitutes torture, capital punishment 
must be held unconstitutional.

Amicus respectfully urges this Court, in view of the facts 
and context of capital punishment, that the institution of 
the death penalty be considered in light of Trap:

. . . There may be involved no physical mistreatment 
nor primitive torture. There is instead the total 
destruction of the individual’s status in organized 
society. It is a form of punishment more primitive than 
torture, for it destroys for the individual the political 
existence that was centuries in development. . . .  In 
short, the expatriate has lost the right to have rights.

This punishment (denationalization) is offensive to 
cardinal principles for which the Constitution stands. 
It subjects the individual to a fate of ever-increasing 
fear and distress. Trop v. Dulles, 356 TT.S. 86, 101-102 
(1958).

The facts are referred to under Parts I and II, and in the 
Appendices.

The death penalty, as torture, is necessarily violative of 
the Eighth Amendment and no contentions of necessity 
or justification can be considered.

Said this Court midway in its history:
“ . . . difficulty would attend the effort to define with 

exactness the extent of the constitutional provision 
which provides that cruel and unusual punishments 
shall not be inflicted; but it is safe to affirm that punish-



42

ments of torture, such as those mentioned by the com­
mentators referred to, and all others in the same line 
of unnecessary cruelty, are forbidden by that amend­
ment to the Constitution. Cooley, Const. Lim., 4th Ed. 
408, Wharton, Crim. Law, 7th Ed. §3405.” WilTcerson 
v. Utah, 99 U.S. 130, 136 (1879) (dictum).

CONCLUSION

That the cruel and unusual punishments clause incorpo­
rates mental agony and destruction of personality is clear 
from Trop v. Dulles. Speaking of the denationalization of 
a wartime deserter, a punishment which involved no physi­
cal pain at all, the Court said,

“ . . . There may be involved no physical mistreatment 
nor primitive torture. There is instead the total de­
struction of the individual’s status in organized society. 
It is a form of punishment more primitive than torture, 
for it destroys for the individual the political existence 
that was centuries in development . . .  It subjects the 
individual to a fate of ever-increasing fear and dis­
tress,” Trop v. Dulles, 356 U.S. 86, 101-102 (1958).

Mr. Justice Frankfurter, dissenting in Trop, noted that 
wartime desertion is, and always has been, a capital offense. 
He posed the rhetorical question, “Is constitutional dialec­
tic so empty of reason that it can be seriously urged that 
loss of citizenship is a fate worse than death?” 356 U.S. at 
125. The plurality opinion had denied the validity of using 
the death penalty as a measure of constitutional punish­
ments.

“ . . .  It is plain that the existence of the death penalty 
is not a license to the Government to devise any pun-



43

ishment short of death within the limit of its imagina­
tion.” 356 U.S. at 99.

The real meaning of Trop v. Dulles cannot be understood 
except in the context of its time. Until death is ruled un­
constitutional, courts will be indulging that “constitutional 
dialectic so empty of reason” of which Mr. Justice Frank­
furter complained. Essentially, the plight of justice, 
shared by the majority and the dissenters in Trop, is that 
whatever progress is to be, under the Eighth, is severely 
hampered by the survival of this worst of all excesses im­
posed upon human beings by the modern civilized state.

It is only now that the Court is presented with evidence 
of the unlimited mental anguish of death row-s. The 1,000 
or more days of fear and distress, ever increasing with the 
last efforts at appeal, exceeds the travail of the most 
sophisticated physical tortures. It cannot be seriously ar­
gued that loss of citizenship is a fate worse than the fate of 
a condemned man on death row. It must be concluded that 
the death penalty is far worse than the denationalization 
of a citizen.

Not only the infliction of death, but the entire institution 
of capital punishment is the subject of this brief. The 
amicus has invited the Court’s attention to the Death Row7 
process itself: the years of uncertain waiting marked by 
the deaths of row-neighbors, the anguish as other inmates’ 
days of execution approach; cries, self-mutilations, despair, 
and insanity—all in bleak contrast to the relative freedom 
of the reformatory yard below.

The meting out of punishment, like every other subject 
of the Sixth, Seventh and Eighth Amendments, is em­
phatically the judiciary’s business, involving the operation



44

of the judicial process and the efficacy of the judicial power. 
The Court may prudently strike the death penalty now 
when the society has constructed, staffed and supported 
reformatories, and is served by the techniques of crimi­
nology, psychiatry, and education.

During the century between the enactment of the English 
Declaration of Rights and the American Bill of Rights 
(1688-1791), men were not aware of the psychology of pain, 
assuming that the greatest pain was physical. We now 
know that the anticipation of death is more unbearable.61

Respectfully submitted,

Gerald H. Gottlieb 
210 W. 7th Street 
Los Angeles, California 90014

Melvin L. W olf

Sanford J ay R osen

American Civil Liberties 
Union Foundation 

156 Fifth Avenue 
New York, New York 10010 
Attorneys for 
Amicus Curiae

By Gerald H. Gottlieb

61 - - without intending to diminish the anguish that occurs in 
the final stages of life-taking. As to this, we further invite the 
Court’s attention to Appendices A and C.



A P P E N D I C E S



APPEND IX  A

T ran sc rip t F ro m  th e  Los Angeles S up erio r C ourt 
Case o f P e o p le  v. T h orn ton .

SUPERIOR COURT OF THE STATE OF CALIFORNIA 
F or the County of L os A ngeles

Department 101 Hon. Herbert V. Walker, Judge
No. 328445

T he P eople of the State of California,

P la in tiff ,
vs.

R obert E mmett T hornton,
Defendant.

Reporters’ Daily Transcript
Monday, November 6,1967

Los Angeles, California, Monday, November 6, 1967; 
9 :5Q A.M.

The Court: People vs. Thornton, let the record show 
the parties and counsel are present.

You may proceed.
Call your next witness.
Mr. Gottlieb: Your Honor, we will call Professor Thor- 

sten Sellin. I might mention, your Honor, that in view of 
the fact that the State takes the position that the defense 
to our attack on the death penalty of deterrents is relevant, 
and not knowing what the final ruling of the Court will 
be on that matter, and because of the schedule of Pro-



2a.

fessor Selim, we ask that this testimony be taken now, 
even though it would in effect constitute a portion of any 
rebuttal case that we may wish to put on. We ask the 
indulgence of the Court in view of the fact that he will 
not be available later.

The Court: All right.
Mr. Gottlieb: Thank you, your Honor.
Professor Sellin.
The Clerk: Would you raise your right hand, please.
You do solemnly swear the testimony you are about to 

give in the cause now pending before this Court shall be the 
truth, the whole truth, and nothing but the truth, so help 
you God ?

The Witness: I do.
The Clerk: Be seated, please.
State your name, please.
The Witness: Thorsten Sellin.
The Clerk: Spell your last name.
The Witness: S-e-l-l-i-n.

Direct Examination by Mr. Gottlieb:
Q. Professor Sellin, are you presently attached to any 

academic institution? A. Yes, I am an emeritus professor 
of the University of Pennsylvania.

Q. In what field is your work? A. I  have been teaching 
criminology since 1926.

Q. And at what places have you taught, Professor Sellin? 
A. Well, I have taught mostly at the University of Penn­
sylvania, at Columbia University as a lecturer for ten 
years; as a visiting professor at Princeton; the University 
of California at Berkeley; as a lecturer in a great many 
European universities. In 1959 and 1960 I was a Full- 
bright lecturer at the University of Cambridge.

Q. Professor, prior to the portion of your life involved 
with teaching and with holdings of the chairs at the uni­
versities, what was your education prior to that time? A. 
I went to college. I took a master’s degree in 1916 at the 
University of Pennsylvania; I later on studied in part at



3a

the University of Minnesota while I  was teaching in Min­
neapolis; and in 1922 I received a doctorate from the Uni­
versity of Pennsylvania.

Q. In what field, Doctor? A. In the field of sociology.

The Court: May I interrupt just a moment?
(A recess was taken to dispose of another matter.)
The Court: Sorry to interrupt you. Go ahead.
Mr. Gottlieb: Your Plonor doesn’t mind if I stand?
The Court: No.

By Mr. Gottlieb:
Q. Professor, are you a member of professional and aca­

demic societies, honorary societies that you could mention? 
A. Yes, I am a member of the usual sociological profes­
sional societies.

Q. Would you name them? A. The American Sociologi­
cal Association; I am a member of the American Philo­
sophical Society; I am a member of the International So­
ciety of Criminology; the American Society of Criminology. 
There may be many others but they have no particular 
bearing on this.

Q. Have you held offices in professional and academic 
societies? A. Yes, I have from 1956 to 1965. I was presi­
dent of the International Society of Criminology which had 
its headquarters in Paris; I am now its honorary president. 
I am president of the International Penal and Penitentiary 
Foundation with headquarters in Switzerland.

Q. I didn’t hear the full name. A. The International 
Penal and Penitentiary Foundation. Many years ago I was 
president of the Eastern Sociological Society, which is the 
largest branch society of the American Sociological Asso­
ciation.

Q. And may I ask you, if you would, to put modesty 
aside and refer to any, or to some at least matters of an 
honorary nature. A. Well, I hold honorary degrees from 
the University of Uppsala in Sweden and Leiden in Hoi-



4a

land as Doctor of Jurisprudence; also from my alma mater, 
Augustana College in Rock Island, Illinois. I have an hon­
orary membership in Phi Beta Kappa.

Q. Now Professor Sellin, have you published? A. Yes, 
I have published eight or nine books and some 180 articles.

Q. Broadly referring to the books, in what fields are 
they written? A. Entirely in the field of criminology and 
penology.

Q. And the articles? The 180-odd articles? A. They 
are also in the field, yes.

Q. These articles are they, are some of them pub­
lished in learned journals? A. Most of them are, yes.

Q. Have you during your career, Professor Sellin, been 
called to present your findings on sociological questions to 
public bodies? This is a yes or no at this point. A. Yes.

Q. And those public bodies included parts of foreign 
governments? A. Yes. I  was for one year a consultant to 
the Penal Code Commission of Sweden.

Q. Sweden? A. Sweden, and in 1950, ’51, when I was 
Secretary General of the International Penal and Peniten­
tiary Commission for a year and a half in Switzerland, the 
British Commissioner on capital punishment asked me to 
prepare a brief for the commission. Later on the Canadian 
Parliament’s Joint Committee of Senate and House of Rep­
resentatives also asked me to prepare some studies for 
them.

Q. And have you also been called on as a consultant 
within the United States? A. Yes, I was a member of the 
Advisory Committee of the American Law Institute that 
drafted the Youth Correctional Authority Act in the early 
1940’s; for ten years I was on the advising committee of 
the American Law Institute to prepare the model penal 
code. I have also drafted legislation for the National Com­
missioners of the Uniform State Laws. I have drafted the 
Uniform Criminal Statistics Act for that particular body, 
and that is the act that was adopted by California a few 
years ago.

The Court: May I  interrupt you just one moment 
again?



5a

(There was a brief recess to dispose of another 
not related matter.)

The Court: You may proceed.

By Mr. Gottlieb:
Q. Dr. Sellin, in the course of your activities in your 

career—let me go back a bit more on the matter of your 
education if I may.

Has your education included studies involving that por­
tion of sociology which deals with matters of crime! A. 
Has my education, you say!

Q. Yes, I am talking about the early formal education. 
Did this extend in sociology to dealing with matters, with 
the subject of crime? A. At the time when I got my educa­
tion it wasn’t quite so common to have special courses in 
criminology. But after I received my degree, my doctorate 
in 1922, I took two years off, 1924-26, and spent those two 
years in Europe in the study of criminology, mostly in 
Paris; a year at the Law School in the Institute of Crimi­
nology at the Law School in Paris; and also in Italy and 
in England.

Q. Was that at Sorbonne? A. I was at the law school, 
the Institute of Law.

Q, Have your books been used in academic circles? A. 
Yes, I know they have.

Q. Would you refer to some of the titles of the books, 
Professor? A. Well, part of them are historical, some are 
statistical. I prepared a book on the depression and that 
was back in 1937; in 1938 another book on psychological re­
search, counsel, on conflicts and crime a few years later, a 
book on the criminality of youth which was published by the 
American Law Institute that grew out of my work as a 
consultant for the youth correctional authorities; in 1944 
a book, a historical work on origin and history of the Am­
sterdam Houses of Correction in the 16th and 17th cen­
turies. I  called it “Pioneering in Penology”. In 1959 the 
American Law Institute published my book under the death



6a

penalty which grew out of the work that I wxas doing for 
the Law Institute on moral codes.

Two years ago I published what they called or what I 
considered a work on the measurement of delinquency and 
I have also translated and had published translations of the 
New Switzerland Penal Code at the Child Welfare As­
sociation of Sweden and which was published by the Minis­
ter of Justice in Stockholm.

Q. Have you co-authored books with other authors? A. 
Yes, a few of them. One of them is a book on the Measure­
ment of Delinquency, yes.

Q. Have you had contact with a colleague, Harry Barnes ? 
A. I know him, yes.

Q. Referring back to the studies, and I notice the titles 
dealing again and again with matters of crime delinquency 
conflicts, have you had occasion during your career to study 
and look into the causes of crime? A. I have handled, I 
have had occasion to study crime and to see what relation­
ship there may be between crime and social and economic 
conditions, and the problem or cause becomes a very dif­
ficult one.

Q. Have you had occasion not only in writing of your 
own books but to read the works of others on the subject 
of crime incidence and causation of crime? A. Yes.

Q. More particularly, have you had occasion to read into 
the factors that are considered by students of the subject 
to be the major causes of crime? A. Yes, I have.

Q. This also includes crimes of violence? A. Yes.
Q. As a preliminary question, Professor, would you indi­

cate, referring as you will, to such readings and materials 
as come to mind, what are considered by you students of the 
field to be the factors that cause crimes of violence and to 
which crimes of violence are attributable by the men and 
persons who are learned in the field.

Mr. Busch: Just a minute. I am going to object. 
I believe it would be irrelevant to this hearing here.

The Court: It will be sustained.
Mr. Gottlieb: Your Honor, this presents a prob­

lem in this sense, that if the People’s position is that



7a

the question of what constitutes the causal factors 
in crimes of violence, if this question is deemed by 
the People to be irrelevent, then I take it we might 
as well rest with respect to the question of possible 
deterrents because I had assumed that that is what 
we were trying to do, but I am not arguing, I am 
merely reflecting upon the implication of their ob­
jection.

The Court: I don’t think the area is particularly 
relevant myself.

Mr. Gottlieb: I am not going into this—I am not 
going to give a lecture on the burden.

Mr. Busch: I didn’t know we had a burden in this 
case.

The Court: In any event, I will sustain the objec­
tion, counsel, and you proceed with your examination 
of this witness as you see fit.

Mr. Gottlieb: Thank you.
Q. I will speak now in view of the ruling of the Court 

and, Professor Sellin, what are the dominant causes, as 
you understand them, of crimes of violence?

Mr. Busch: Same objection, it is not relevant to 
this hearing.

The Court: It will be sustained.

By Mr. Gottlieb:
Q. Have you had occasion to study the effect of the death 

penalty in relation to crimes of violence? A. I have had 
occasion to study it with relation to murder.

Q. And in connection with that study, have you come to 
—would you state the nature of the studies that you have 
conducted? A. Well, for the Royal Commission on Capital 
Punishment, I  examined a research that had been done in 
various countries where the death penalty had been tem­
porarily abandoned and then reinstated, especially some of 
the German states back in the middle of the last century, 
and I examined all of the statistical data that I could find 
in the United States on homicide rates and executions and so



8a

on, in order to make it possible for me to prepare the ma­
terial for the Royal Commission.

I did the same thing also for the Canadian Commission 
or Committee and made a special study for the Canadians 
on the relationship between the death penalty, what I call 
police safety, in other words, a study to examine to what 
degree the claim was true that the police was better pro­
tected in states that possessed the death penalty.

I have also since that time, I have examined statistics 
of the homicides committed by prisoners in penal institu­
tions in order to see whether or not the states that have the 
death penalty offer greater protection to the personnel 
and the staff and the Federal prisoners than the states 
that have abolished the death penalty. I think that this 
study that I made was with the assistance of the State Cor­
rectional Departments in all but three or four of the small, 
smallest states in the United States and in 1965 it is prob­
ably the first knowledgeable examination of prison homi­
cides that have been made in the United States.

Q. Without going into statistics, or without going into 
detail, Professor, would you care, would you care to give 
us what you concluded from these studies? A. Well, my 
conclusion has been that I am not able to find any positive 
relationship between homicide rates and the existence or 
non-existence of the death penalty executions or no execu­
tions and homicide rates.

Q. And have you drawn a conclusion with respect to 
the safety of guards within prisons in this connection? A. 
Well, there is no incidence at least on the basis of the 
findings of this survey that I made in 1965 and prior sur­
veys did not indicate one as extensive, that is in 1964, and 
there was also a survey made in 1964 and 1965 in the 
Canadian institutions and Canadian prisons done with the 
assistance of the Corrections Department in Canada and 
there is no evidence that prison homicides occurred at any 
more frequency, everything considered, the population size 
and so on, than occurred in smaller states and again in the 
bigger states.



9a

Furthermore, I found that in most of the homicides com­
mitted in prisons by prisoners are not committed by per­
sons who are serving sentences for murder but committed 
by persons serving sentences for robbery and other of­
fenses.

Q. If I understand it right, some of the data or some of 
the studies that you have made is a comparison within 
particular states or countries where there has been an 
elimination temporarily or otherwise of the death penalty 
as one of the means of comparison? A. Yes, I have inso­
far as it has been possible to secure data. I have examined 
what has happened before, during and after abolition. It 
is not easy to interpret exact data from the last wave of 
abolition prior to the one going on now that occurred dur­
ing the first World War and/or prior to the first World War 
and some of the states abolished it only for a year or two 
years, not necessarily for the crime of murder but have 
reinstated it under rather difficult post-war conditions; for 
instance, wholesale demobilization and in some instances 
there seems to be a temporary decline in homicide rates 
and in others an increase, so that there was no evidence 
that this abolishment had in any way whatsoever anything 
to do or at any time has had anything to do with the de­
velopment of these homicide rates.

Q. Professor, in the analysis in the United States of the 
data, have you applied tests that relate to the problems 
of significance of variation ? A. No, I have not specifically.

Q. Have you in a general sense indicated whether or not 
on a temporary basis or is there not any statistical signifi­
cance? A. I have not, no.

Q. The data that you have used has been of a compari­
son within various states, has it, and it has also involved 
comparisons between states of the United States ? A. Yes, 
indeed.

Q. Now as to that, would you indicate what states, if you 
have it in mind, that have been the subject of these com­
parison studies? A. The early comparisons as a rule, 
what the students of the problem have done is to compare



10a

states with the death penalty and those that do not have the 
death penalty in the United States. Those comparisons I 
regard as illegitimate and improper because abolition states 
have been in the north; all of the southern states with 
their special population problems have had the death pen­
alty, so I think it is only fair to make a comparison, to 
take the death penalty, that is the abolition states and then 
compare the data from those states with the neighboring 
states that appear to have the same general cultural de­
velopment and population problems and so on, so there 
I made comparisons between Maine, who has no death pen­
alty, Vermont, and New Hampshire that do have, Rhode 
Island that does not have the death penalty, Massachusetts 
and Connecticut that do, Michigan that has no death pen­
alty, and Ohio and Indiana next door that do.

Wisconsin and Minnesota who do not have the death 
penalty compared with Iowa and Illinois. In such com­
parisons it is impossible to find any differences both as 
to size and as to trend over the period of years they have 
followed within each of these culture areas, whether it is 
east or midwest; they follow the same trend and they are 
all of them approximately the same size. If I were to pre­
sent to any reasonable man graphs of these rates for these 
compared states without mentioning the name of the state, 
and ask him to select the one that had abolished the death 
penalty or retained it, I would defy any reasonable person 
to be able to do that, because they are so similar.

Q. We’ll return to that, to those comparisons.
Now beyond the comparison between neighboring, or 

states within regions as you have indicated, and the com­
parison that has to do with abolition or the discontinuance 
by whatever means on the one hand and the continuance 
of executions on the other, what other comparative data— 
let me withdraw that question.

What has been your source of data which you indicate 
as to the various comparative studies that you have made ? 
A. Well, so far as discussions are concerned I relied upon 
the very excellent and complete statistics that have been



11a

published since 1930, first by the Bureau of the Census, 
and since 1946 by the Federal Bureau of Prisons, which 
hold annually the number of executions and the characteris­
tics of those executions and so on. So far as homicide data 
are concerned, I have relied upon the mortality statistics of 
the United States Department of Health, Education and 
Welfare, from their vital statistics, which are statistics of 
willful homicide as the cause of death. They show a very, 
very high co-relation with the statistics of willful homicide 
known to the police and published by the FBI. And these 
mortality statistics are generally regarded by statisticians 
today as being a very adequate basis for measurement.

Q. Have you also considered the rates or the numbers 
of executions in other countries in the course of your 
studies! A. Well, I have read the material that was pub­
lished by the British Royal Commission on the situation in 
England. When it comes to most of the other countries, 
they haven’t had any executions for so long that there is 
nothing to study, at least not for the last several decades.

Q. To what countries do you refer in the statement that 
they have not had executions for the last several decades! 
A. Well, the Belgium and Holland and the Scandinavian 
countries have not had any executions for several decades. 
Except immediately after the war for collaborators in some 
of those countries; but not for murder. The West German 
constitution, the Italian constitution both eliminate the 
death penalty since the last war. And of course England 
has done so recently, for murder. So—even France still re­
tains the death penalty but the rate of executions have been 
declining very very steadily since the war, since that col­
laboration period after the war. Now I think only about— 
there are one or two executions a year in France. There 
used to be a very high number there annually.

Q. The death penalty is retained in the Soviet Union? 
A. Yes, it’s retained in the Soviet Union, more for cer­
tain economic crimes than for crimes against the person.

Q. Now returning to the comparative data you have 
mentioned, comparing states as mentioned—abolitionist and 
other states, considering the available data, would it be



12a

possible, Professor Sellin, for a strident of criminology to 
apply the principles of intellectual honesty in his considera­
tion of the data, to reach a conclusion that the death penalty 
has some additive effect in the deterrence of crimes in those 
states that practice it! A. No, that would not be pos­
sible.

Q. I ’d like to refer to the portion of this country in the 
southern part, the southern states. Are the homicide rates 
in southern states particularly higher than those for other 
regions? A. Yes, they are very high, comparatively speak­
ing.

Q. Have any of the southern states extinguished the use 
of capital punishment? A. Not to my knowledge, unless 
West Virginia is to be considered a southern state; in that 
case West Virginia abolished the death penalty two years 
ago.

Q. Referring to the southern states, do you have in mind 
—I refer to particular southern states—the general order 
of homicide rates as compared to those of particular states 
in the north? A. Well, the lowest homicide rates are in the 
northeast—states like Maine, New Hampshire and Vermont 
have homicide rates that compare favorably with the very 
best of European countries. The rates tend to rise as you 
proceed toward the midwest and as you proceed southward, 
so that one might generalize by saying that the farther 
south you go the more likely you will find a higher homi­
cide rate; and the same thing would be true westward.

Q. Do you have an opinion as to why the farther south 
you go the higher the homicide rate ? A. I t’s partly a popu­
lation problem, and partly a cultural problem. The homi­
cide rate is so far as we can judge much higher among the 
colored population than the white population, which can be 
deduced in a sense from the fact that it has been found—■ 
and that is a generally known fact—that homicide tends to 
be something that occurs within the family or the cultural 
group to which one belongs. In other words, Mexicans kill 
Mexicans and Negroes kill Negroes and whites kill whites 
and so on. They are acquaintances, drinking companions, 
members of the family and so on. And we know that 50



13a

percent of the victims of homicide—-50 percent is white 
and 50 percent is colored. Considering therefore the size 
of the colored population in the United States, the homicide 
rate is evidently very much higher in that group, and that 
accounts to some degree for the higher rates in the south, 
because that is where the colored population is largest.

Q. Is poverty one of these factors? A. Yes, judging 
from the social and economic status of those who have com­
mitted homicides you find that they mostly come from the 
poorer classes. Whether poverty is the cause or not is an­
other matter.

Mr. Busch: I didn’t hear the last part.
The Witness: I say whether poverty.is the cause 

of that or not that is very difficult to say.

By Mr. Gottlieb:
Q. In the course of your career is it a fair statement 

to say that you have been acquainted with most of those 
persons who are of eminence in the field of sociology and 
criminology in this country? A. Yes, I think that’s fair 
to say.

Q. And that you are acquainted with the writings of per­
sons learned in the field of penologv and criminology? A. 
Yes.

Q. And Professor Sellin, among those persons and among 
those writings is the factor of the existence or non-exist­
ence of the institution of capital punishment in a particular 
state considered to be a significant factor as to the incidence 
of crimes of violence?

Mr. Busch: Objected to as calling for his conclu­
sion, and hearsay.

Mr. Gottlieb: He’s an expert, your Honor.
The Court: For his own opinion, he may consider 

any facts which are used for that purpose, but when 
you talk about “all the people of eminence,” this gets 
into the field of hearsay, as I view it.

Mr. Gottlieb: I ’m asking—



14a

The Court: You’re asking for the opinion of many. 
He is capable of giving his own opinion based on the 
opinion of many, if that is what he is talking about; 
I  don’t know. The objection will be sustained.

By Mr. Gottlieb:
Q. Based upon your studies and your researches and all 

other considerations that you apply, Professor Sellin, is 
the existence or non-existence of the institution of capital 
punishment a significant factor in the incidence of crimes of 
violence in these particular states? A. I  have found no 
connection.

Q. And have you in part relied in that answer upon re­
view of the writings of others? A. I have read a great 
many studies, yes.

The Court: The question, though, Doctor, is did 
you rely on what information you got from the sub­
ject—

Mr. Gottlieb: May I rephrase my question, your 
Honor?

The Court: Your question is all right,
Mr. Gottlieb: Sorry, your Honor.

Q. Did you consider, did you give consideration and re­
view the writings of others in connection with these deter­
minations? A. Yes, I did that.

Q. And would it be a fair statement to say that you 
reviewed the writings and communicated with those of 
eminence in the field? A. I read a great many studies on 
murder and crime in general and so on, some of them by 
very eminent scholars and some of them by very, very 
modest ones. There have been a great many of them, any­
way.

Q. Professor Sellin, do you have at hand any tables, 
any tabulations on these comparative studies? A. I have 
some—I didn’t bring tables. I have some tabular material 
that I could present, yes, that is in text form, but no 
specific tables. I have that report on executions. I have



15a

certain diagrams; I spoke about the diagrams, about the 
movement of the death penalty in the United States and 
the statistics involved.

Q. The particular section of the book that the Profes­
sor has handed me, “Capital Punishment, Thorsten Sellin, 
Editor,” and this is an article in that work titled: “Homi­
cides in Retentionist and Abolitionist States by Thorsten 
Sellin.”

We may introduce this later; in any case, I will show 
it to counsel.

(Mr. Busch examines and returns the book.)

By Mr. Gottlieb:
Q. Referring then to pages 136 and 137 which are some 

charts, would you explain what those charts show? A. 
These are the diagrams to which I referred earlier, which 
indicate the size and the trend of homicide death rates in 
contiguous abolitionist and retentionist states from 1920 
to 1963, inclusive; and in each of these diagrams there is 
at least one abolitionist state and the rates of that state 
are shown in comparison with the rates of contiguous 
states that have retained the death penalty, and which in­
dicates that the trend from the 1920s appear to be in the 
same general direction and involve the same general size 
for each particular group of states, especially within re­
cent years.

Q. Let the record show that Professor Sellin has re­
ferred to the table entitled, “Homicide Rates Per 100,000 
Population in Contiguous Abolitionist and Retentionist 
States, 1920 to 1963,” with a series of six graphs on those 
two pages, the first of which is a comparison of Maine, Ver­
mont, a,nd New Hampshire, Maine being an abolitionist 
state—correct me if I ’m wrong, Professor—

The Court: Well, this is only putting in graphical 
form that to which he has already testified relating 
to the several states he previously testified to ; isn’t 
that correct, Doctor?



16a

The Witness: Yes, your Honor.
The Court: No use repeating it over and over 

again, if it’s there.

By Mr. Gottlieb:
Q. Would you refer, sir, to other data upon which this 

has been based? A. You mean on these particular dia­
grams ?

Q. Yes, beyond this do you have data here on which the 
charts themselves are based? A. The charts are based 
upon the homicide death rates published by the Bureau of 
Vital Statistics for each particular state for the period 
covered, and that is all in this particular set of diagrams.

Mr. Gottlieb: You may examine. No further ques­
tions.

The Court: We will take the morning recess, Doc­
tor.

(Recess.)
The Court: People vs. Thornton. Let the record 

show the parties and counsel are present and the Doc­
tor has resumed the stand.

You may proceed.

Cross Examination by Mr. Busch:
Q. Doctor Sellin, I am Joseph Busch of the District At­

torney’s office here in Los Angeles County.
Did you make your first comprehensive study with re­

lation to the death penalty for the Royal Commission on 
Capital Punishment that was in existence in Great Britain, 
that is in the 1950s? A. Yes, by “study” if you mean any 
direct personal research, yes. I had been teaching crimi­
nology, of course, for many years and in that connection I 
had been reading about capital punishment and so on.

Q, Were you asked to conduct that particular study? A. 
The Royal Commission asked me to provide them with 
statistical data. It was a rather general request. The 
Commission had sent out questionnaires to a great many



17a

European countries and American states, but the replies 
to those, the questions referred to statistical data, seemed 
to be very poor and the Commission felt that they wanted a 
great deal more information, though, of that nature. Well, 
it was my own idea to focus on making a determination or 
focus of that collection of data, just as you would collect 
statistics, without some kind of focus, so I used that idea 
as a basis for the collection and the study and the research.

Q. Did you make independent surveys of the effect of the 
death penalty on homicides at that time other than the 
statistics that were presented to you? A. Well, my own 
independent studies at that time was a collection of data 
on homicide death rates for the various states that was 
studied in the United States and in those data that was not 
available in that form before that time. I think I would 
consider that an independent research.

Q. And the statistical information that you included 
within your survey tried to delineate, though, types of 
homicides as compared just to homicide reports generally? 
A. They were wilful homicides, deaths due to wilful homi­
cides, they were not specifically by degree of homicides. 
This is the same kind of data that the FBI is now publish­
ing under the name of murder and non-legitimate man­
slaughter.

Q. Would it have included manslaughter as may be de­
fined by particular states? A. That is correct.

Q. Would it have included wilful killings within par­
ticular states that might not have amounted to capital 
offenses ? A. That is correct.

Q. And then it would have included wilful homicides 
that included capital offenses, is that right? A. That is 
correct.

Q. And did you endeavor to at any time in your studies 
try and break down the effect of the death penalty with re­
lation to capital wilful killings? A. I just never found 
any statistics that showed the amount or number of the 
capital murders. They don’t exist.

Q. That is something that is not available, is that right?



18a

Mr. Leavy: You will have to answer out loud. 
You nodded your head instead of answering.

The Witness: Oh, I see. Excuse me.
Mr. Leavy: What was your answer?
The Witness: I said, “That is correct.” I know of 

no statistics on capital punishment that include the 
number of capital murders of both capital kinds.

By Mr. Busch'.
Q. In your studies have you found that in some states 

they have a classification of felony-murder, that doctrine, 
as it applies to particular felonies as being capital crimes? 
A. Yes.

Q. Have you ever been able to find any statistics on 
that type of capital offense alone ? A. I think that within 
the last few years the FBI has attempted to segregate 
felony-murders from other offenses but this is extremely 
difficult to do, as you have to get it through initial statistics 
and the general effect is, well, the United States has the 
poorest of statistics of any civilized nation.

Q. Have you ever made any studies as to the effect of 
capital punishment on nonhomicide crimes? A. Not the 
effect of capital punishment, but I have attempted a study 
on the effect of an increase in the severity of punishment 
for a particular crime, to see whether or not that had any 
effect upon that particular type of crime, in the City of 
Philadelphia.

Q. Have you ever made a study of the effect of capita] 
punishment on the crime commonly called the “little Lind­
bergh Law”—the Lindbergh law?

Mr. Gottlieb: Could we have a description, counsel, 
beyond that appellation ?

The Witness: You mean the kidnapping?

By Mr. Busch:
Q. Kidnapping for the purpose of ransom or extortion 

or robbery, where injury might occur to the victim? A. I 
have never made such a study.



19a

Q. Would it be a fair statement, I)r. Sellin, to state that 
your studies with relation to capital punishment in homi­
cides has been a comparative one between nations and 
states that do and do not have capital punishment? A. Yes, 
I think that would be fair.

Q. Have you ever made a comparative study of Califor­
nia—the State of California—with any other country or 
state? A. I have not.

Q. Is California included within the tables that you made 
reference to when Mr. Gottlieb was questioning you? A. It 
is not.

Q. I take this is the first time you have appeared in 
California on this issue? A. Not quite.

Q. Have you appeared here before, sir ? A. Not in court.
Q. Where have you appeared? A. I was asked once to 

speak to the—was it the House Judiciary Committee in 
Sacramento? I forget exactly now.

Q. Do you recall about when that was? A. Oh, a few 
years ago.

Q. After you had made your report to the Eoval Com­
mission on Capital Punishment in the early 1950’s, did you 
see a copy of their findings? A. Yes, indeed.

Q. When you appeared before that Royal Commission, 
Dr. Sellin, did you indicate to them that your statistics did 
not support a conclusion that capital punishment had no 
deterrent effect? A. I forget the wording that was used. 
WTiat I wanted to convey to them was that I  had been 
unable to find any positive or negative relationship be­
tween executions, the death penalty and the homicide rates; 
that was the general tenor of the conclusion.

Q. Would it be fair to say that you were unable to arrive 
at an effective conclusion with reference to it? A. I was 
unable to arrive at a conclusion that the death penalty had 
any positive effect on homicide rates.

Q. Were you able to arrive at a conclusion that it did 
not have? A. I was unable to find any relationship be­
tween the death penalty and homicide rates.

Q. Have you ever undertaken to determine whether or 
not the individuals who have not committed a willful homi-



20a

cide were affected by the existence of capital punishment? 
A. Specific persons? No, of course not. I have not been 
able to do that. In more local influence rather than these 
large-scale state studies, we made one back in the 1930’s, a 
study of the effect of executions on Philadelphians in highly 
publicized cases upon homicidal deaths before and after 
the executions, and that study was published, it was done 
by a professor at Oregon State, and it was found that there 
was no—one couldn’t tell any difference between the two 
periods before or after an execution. The executions were 
highly publicized; one of them was the execution of four 
young men all in one evening for a murder—a bank robbery 
murder—yet there was no indication; the murders went 
on, the homicides went on just as regularly afterwards.

Q. Was this study a study that consisted of persons who 
before and after an execution committed willful homicides ? 
A. Not as a person, no. Only of cases.

Q. But they did actually commit a willful homicide? 
A. No, what we did was—we had the execution date. We 
knew that execution date and for several weeks prior to 
that date and after that date we searched the records of 
the police department, the coroner, and the court, to find 
cases of homicides that had occurred in Philadelphia. We 
weren’t interested in the persons who did them. We only 
wanted the cases and to see whether or not there were 
fewer cases immediately after an execution than before an 
execution; that is the kind of study it was.

Q. My point is, it took into consideration the fact that 
somebody had been destroyed, or suffered in your opinion 
a willful homicide? There was a dead body? A. Oh yes, 
indeed, there had been—

Q. You attributed the actual deaths to willful homicide? 
A. It was on the basis of police arid coroner’s data and 
so on.

Q. In your studies have you ever run across individuals 
who have not committed a willful homicide who have indi­
cated to you that but for being faced with the death penalty 
they would have? A. I have not met any such person.

Q. Have you endeavored to make such a study? A. No.



21a

Q. Have you run across a discussion of this in your 
studies? A. I  have read opinions, yes.

Q. And have you read opinions that covered that particu­
lar topic? A. Not judicial opinions. Newspaper opinions.

Q. Have you ever pursued such information to make it 
part of your studies? A. No, I have not.

Q. Have you made a study of any police records that 
might indicate that there were individuals who stated they 
were deterred by capital punishment? A. I  have not, no.

Q. In your concept of the term “deterrent,” assume an 
individual stated that he did not commit a willful homicide 
because of fear of the death penalty, would that constitute 
a deterrent in your definition?

Mr. Gottlieb: Could I have the question back, 
your Honor?

(Reporter reads question.)
The "Witness: You mean to say would I believe 

him?
The Court: No.

By Mr. Busch'.
Q. Well, assume he is telling the truth. A. If he were 

telling the truth, then that is of course something that no 
one knows. What is the truth? I mean that he says so.

Q. Let’s just assume for the purposes of the question 
that he is telling the truth, that he did not commit a willful 
homicide because he was in fear of the death penalty— 
A. Yes—

Q. —in your concept of deterrent, would that be a de­
terrent? A. If he is telling the truth then he would have 
been deterred. He would have been deterred. Presumably.

Mr. Leavy: What was that ?
The Witness: I said “presumably.”

By Mr. Busch:
Q. Have you ever had an opportunity to review a report 

of the California Department of Justice Bureau of Criminal



22a

Statistics that was prepared for the then Senator Edmond 
J. Began of the Senate Committee on Judiciary in 1960 as 
reflected the effect of executions on the death rate in Cali­
fornia? That’s 1963—excuse me.

The Court: Did you say “on the death rate”—“as 
reflected on the death rate”? Is that what you said?

Mr. Busch: On the homicide rate. Excuse me.
The Court: I wondered.

A. Well, I got all of those reports sent to me but I don’t 
remember them. I don’t remember seeing it.

Q. Have some of the reports that you have seen, statis­
tical reports you have seen, indicated that following an 
execution there has been a decrease in the homicide rate 
within a particular state? A. I don’t know of any.

Q. Would you consider such a report in your evaluation? 
A. Yes, I would consider it. I would also consider it very, 
very carefully, how the statistics were gathered and under 
what circumstances, because the statistical data is not 
always reliable. I would have to analyze it very carefully.

Q, If it did show, and assuming the statistical report 
met your standard of—

The Court: Excellence.
Mr. Busch: —excellence, and showed a decrease 

following an execution as a result in homicides, in 
the homicide rate, would that influence your opinion 
in any way?

Mr. Gottlieb: We object on the basis that this is 
calling for speculation, no ground, no foundation 
laid for the question.

Counsel has not provided us with the document to 
which he is apparently referring for review, so I 
object to the question as being speculation and with­
out foundation. If counsel wishes to show that 
document, if it will be necessary, we will be glad to 
review it.

Mr. Busch: I think it is cross examination.
The Court: It will be overruled.



23a

Have you forgotten the question, Doctor?
The Witness: Well, I ’m afraid I have.
The Court: Read the question back.
(The reporter read the question.)
Mr. Gottlieb: We further object as a conclusion, 

this statement in the question which is the words “as 
a result”.

The Court: It will be overruled.
You may answer the question.
The Witness: I would first of all ask during what 

day of the week executions occurred in California. 
That would be my first question because, if they 
occur during a certain period, the early part of the 
week, there are fewer homicides during the early 
days of the week. If executions occur on Fridays it 
will be followed by a great increase in homicides 
because of the fact that on Saturdays and Sundays, 
and Friday nights, those are big homicide nights, 
so that thereafter these are the things that I would 
have to question you about and a question that I 
would have to ask before I would know what credence 
to give to any report whatsoever of that kind.

Q. What if it covered a period of months and years? 
A. Well, what are the dates or days of the week when 
these executions occur? I must have a specific date set. 
Isn’t it Thursday or Monday, or what?

Q. Would it make any difference, the day of the week, if 
it included a period of, say, three months after an execu­
tion? A. Well, I would have to study the report. I cannot 
answer a hypothetical question of that nature supposed to 
be based upon an actual published analysis. I need to see 
the analysis in order to be able to give an opinion.

Q. In the chart that you made reference to when Mr. 
Gottlieb was questioning you, Doctor— A. Yes.

Q. —you showed Maine and Rhode Island, is that right—• 
A. Yes.

Q. —in comparison. A. Yes.



24a

Q. And also Michigan, Wisconsin and Iowa. A. Iowa 
was at that time still retaining the death penalty.

Q. You had Michigan, Indiana and Ohio. A. Yes.
Q. Kansas, Missouri and Colorado. A. Because Kansas 

introduced the death penalty in the middle 1930s, having 
been an abolition state.

Q. North Dakota and South Dakota and Nebraska. A. 
Yes.

Q. Have you endeavored in any way to characterize the 
State of California with any other jurisdiction in the 
country? A. I have not, no.

Q. When you made reference to homicides being in 
greater number on weekends, did you endeavor to distin­
guish between wilful homicides that are capital offenses 
and for manslaughter? A. No.

Q. Or from felony-homicides? A. No, I did not.
Q. Have you ever made any studies to determine whether 

or not wilful homicides that are capital offenses are greater 
on weekends than on other days of the week? A. No.

Q. Or have you made any studies to show that felony- 
murders, capital offenses, are greater over weekends than 
any other time of the week? A. I have not.

Q. Such as robberies, burglaries, where homicides 
occur? A. No, I was referring only to homicides.

Q. As an over-all group? A. Oh, yes.
Q. Manslaughter? A. Oh, yes.
Q. Eliminating negligent homicide? A. I don’t know 

about that but robberies always increase on the weekends. 
I mentioned there are several crimes that increase over the 
weekend period.

Q. But that has not been in the field of wilful homicides 
as a special study for you? A. No.

Q. Do you know of anybody who has? A. You mean on 
criminal homicides?

Q. That made a special study of these felonies, felony- 
murders? A. Felony-murders, yes.

Q. When did this occur? A. Oh, not specifically but one 
of my younger colleagues at the University of Pennsylvania



25a

published a very, very well-done report on the patterns of 
criminal homicides based on the data for a five-year period 
drawn from various records, records from the police and 
judicial records and in that connection he didn’t say that 
felony-murders more than the other homicides but it did 
not continue on to find these distinctions made in such 
studies.

Q. Do you, as an expert in the field, Doctor Sellin, feel 
that a survey could be made of the population in any way 
to determine whether persons who had not actually com­
mitted wilful homicide should be deterred because of the 
death penalty? A. I think it would be extremely difficult 
to make such a study. I don’t know how it could be 
structured, an opinion survey of that nature. I  would 
hesitate to make any comment on it.

Q. Have you endeavored to make a study of inmates of 
prisons who have not committed wilful homicides on a 
guard, as to whether or not these inmates were deterred 
by the threat of a death penalty? A. No, I have not, but 
in 1959 known offenders in this state in the Federal 
prisons, in the United States in 1965, those who did kill 
other prisoners or guards, with few exceptions, all were in 
death penalty states and they were not deterred under 
conditions when it was almost impossible not to escape 
detection.

Q. Have you ever seen anybody who has or heard of any 
that have tried to determine prisoners who have not com­
mitted wilful homicides? A. No, I know of no such study.

Mr. Busch: That is all, your Honor.

Redirect Examination by Mr. Gottlieb:
Q. Professor Sellin, you indicated you made reference 

to a study in Philadelphia that had been made recently, 
and would you indicate something of the details of that 
study? A. Well, on Palm Sunday 1966 there was a very 
brutal rape committed in Philadelphia. Three men went 
into a house and raped a grandmother, her daughter and



26a

her granddaughter, and the old lady was so injured that 
she died afterwards. It aroused enormous public opinion 
in the citizenry and in the state because of the brutality 
of the crime. The Legislature was in session and there 
were demands for increased penalties for rape of all de­
grees but it did not seem to be a deterrent but the District 
Attorney did say that the death penalty had been used 
but used rather rarely but, nevertheless, the Legislature 
increased the penalties, doubled them, in fact, for practi­
cally every type of rape. That was interesting. It seemed 
to provoke a rather interesting study to see what the situa­
tion was prior to Palm Sunday and the days between Palm 
Sunday and the days when the law went into effect, and 
for a six-week period after the law went into effect to see 
what happened so far as the police knowledge was of rapes 
in the City of Philadelphia because we had access to all 
of the offense reports of the police departments and dur­
ing the month before Palm Sunday and after, which was 
April 3, there were 26 forcible rapes and 19 attempts.

During the five weeks before the law was—between Palm 
Sunday and the signing of the law—there were 30 rapes 
and 12 attempts; and during the six weeks after the law 
went into effect there w’ere 86 forcible rapes and 48 at­
tempts. The only conclusion that we could dravT was that 
so far as the increased penalty was concerned that it 
seemed to have no relationship to the rapes that actually 
were occurring. It was believed by some of those who 
urged the increased penalties that the people who were 
contemplating rape would be reading the newspapers and 
know all about the changes in the legislation and would 
take a rational attitude and govern themselves accord­
ingly. This apparently did not happen.

Q. Professor, have you read any studies or been ac­
quainted with any studies as to situations where the anal­
ysis referred to the possible stimulation of crimes of vio­
lence by particular modes of punishment? A. There are 
cases known and well documented where the present exist­
ence of the death penalty and the possibility of execution 
has served somebody as a means, an infrequent means of



27a

committing suicide, being prevented by their religion or 
for some other reason from directly committing suicide, 
have committed a capital offense in order to be executed. 
I believe there is such a case now in California, if I am 
correct, where one prisoner is demanding to be executed, 
refusing all assistance because he wants to die. In the 
old days this was a fairly common one; in the 18th cen­
tury, toward the end of the 18th century in Denmark it 
had become so common to commit a capital crime in order 
to be executed that a law was passed forbidding the exe­
cution of a person who had committed a capital crime 
with such a motive in mind.

One of the very well-known cases in Philadelphia shortly 
after the revolution was a young lieutenant who decided 
he was tired of life and he was going to go to a tavern 
and have a drink and then he was going out to kill the 
first person that he saw, because he wanted to be hanged. 
He did come out of the tavern but old I)r. Cadwallader 
met him and doffed his hat to him with such courtesy that 
the young lieutenant decided to kill the next man; he did, 
and he was promptly hanged. There are such few cases; 
these anecdotes might not be proper in this courtroom.

The Court: Very interesting, however.
Mr. Busch: Pardon me, your Honor—I don’t 

think they are very relevant.
The Witness: Well, there have been cases where 

there has been evidence of stimulation and I think 
psychiatrists have demonstrated that, too.

By Mr. Gottlieb:
Q. Incidentally, if the Court please, since Dr. Sellin 

will be leaving today, and if counsel would provide us with 
the report that counsel referred to, perhaps we could re­
view it at the noon hour in the event that there are any 
matters that it would be appropriate to comment on— 
would counsel provide us with that for that purpose? I 
ask the question through the Court,



28a

Mr. Busch: We haven’t used it with the witness.
Mr. Gottlieb: However, if counsel is thinking of 

using it at a later time in this trial—
The Court: How can he use it at a later time if 

the doctor is gone?
Mr. Gottlieb: If they are intending to use this 

in relation with any other witness, your Honor, we 
would like to see it.

The Court: Well, if they use it they will introduce 
it as an exhibit.

I am interested in one question, Doctor, in rela­
tion to your Philadelphia situation.

Is it possible there could be an increase in those 
statistics due to the fact that the public feeling be­
came so aroused that prosecutions became more 
prevalent than they would under other circum­
stances ?

The Witness: Oh, yes, that could possibly have 
happened, because certainly when it comes to let 
us say the Lindbergh law, I have never been able 
to convince myself that the death penalty had any­
thing to do with it, but when you have only—as I 
think during the 30’s—there were only about a hun­
dred cases of kidnapping for ransom in the whole 
United States, and with all local, state and federal 
law enforcement authorities focusing on each one 
of these individual offenses, the market dropped out 
of kidnapping for ransom. I don’t believe it was 
the death penalty. I think it became completely 
unprofitable.

The Court: What I was saying—your statistics 
show in the last few weeks this rate is practically 
doubling. Could that be due to the fact there was 
stricter enforcement during that period than there 
was during the prior period?

The Witness: Yes, it could have had something 
to do with it. I  doubt that it would be such an enor­
mous rise due to it.



29a

The Court: I ’d like to ask you one other question.
What period of the year did the last six weeks 

cover?
The Witness: From May 12 to—well. May and 

June up to mid July, or something like that.
The Court: Anything further of the doctor by 

anyone ?
Mr. Gottlieb: I want to refer to a matter that I 

should have taken up on direct, your Honor, very 
briefly.

By Mr. Gottlieb:
Q. You mentioned that you are member of the Amer­

ican Philosophical Society. Does that indicate that your 
field is philosophy? A. No, the American Philosophical 
Society is an organization composed of scientists and 
biologists and chemists and physicists and some philoso­
phers, no doubt; but it was founded by Benjamin Frank­
lin for the promotion of useful knowledge, and insofar as 
philosophy is useful knowledge it fits into the picture.

Q. Is this a society which includes in its membership 
Nobel prize winners? A. I think all the Nobel prize win­
ners are in there.

Mr. Gottlieb: We have no further questions at 
this time.

The Court: Anything further, Mr. Busch?

Recross Examination by Mr. Busch:
Q. Doctor, the Philadelphia study that you made, that 

was not with reference to capital offenses, was it? A. 
No, it’s not a capital crime in Pennsylvania.

Q. Do you know whether the reporting methods of the 
police changed after that? A. No, I don’t think that the 
reporting method changed because the reporting method 
has been very very good in that city now for quite a



30a

number of years, as a result of legal reforms; but it is 
conceivable that the enforcement methods and the patrol­
ling may have increased as a result.

Q. Do you think that the public reporting might have 
been influenced by the publicity? A. That’s difficult to 
say. I suppose that might occur. The definition of rape 
is so special and wide in some respects that one would 
have to study the cases. I think you are right, it might 
have induced some people to come forward and report, 
in some instances.

Q. Do you know whether the publicity given to the 
crime itself was greater than the ultimate change in the 
punishment, the publicity given that? A. No, that I do 
not think is true. It was true that at the time it was 
highly publicized, but it led to such a flood of arguments 
and interviews of prominent people as to what should 
be done to stop dastardly crimes of this nature and so on, 
that—it was front page stuff right along, and the pressure 
was on the legislature, and so on; so that the publicity 
given to the legislative effort certainly was the greatest, 
so that anyone who knew how to read and read a news­
paper couldn’t fail to know what was happening in the 
legislature and what the change in the law meant.

Q. Did you feel that that got as much publicity as the 
incident of the crime itself? A, I think so.

Q. The front page? A. Yes.
Mr. Busch: That’s all. Thank you, Doctor.
The Court: May the doctor be excused?
Mr. Gottlieb: Yes, your Honor.
The Court: You may be excused, Doctor.
We will now take the noon recess until 2:00 

o’clock.
(Whereupon the matter wTas adjourned until 2 :00 

p.m. of the same day.)



31a

Los Angeles, California, 
Monday, November 6, 1967; 
2:00 P.M.

The Court: People vs. Thornton. Let the record 
show the parties and counsel are present,

Mr. Gottlieb: Your Honor, we will call Louis 
Jo sly on West, M.D.

The Clerk: You do solemnly swear that the tes­
timony you are about to give in the cause now pend­
ing before this Court shall be the truth, the whole 
truth, and nothing but the truth, so help you God!

The Witness: I  do.

Louis J oslyon W est, called as a witness on behalf of 
the defendant, having been duly sworn, was examined and 
testified as follows:

The Clerk: Be seated, please.
State your name, please.
The Witness: Dr. Louis, L-o-u-i-s, Joslyon, J-o-s- 

1-y-o-n, West.

Direct Examination by Mr. Gottlieb:
Q. Dr. West, you are a Doctor of Medicine, are you! 

A. Yes.
Q. Doctor, what is your specialization in that field! A. 

I am a psychiatrist.
Q. And at the present time with what institutions are 

you connected? A. Well, at the moment I am completing 
a Fellowship at the Center for Advanced Studies in Be­
havioral Sciences at Stanford, California, while on leave 
of absence from my regular job which, since 1954, has 
been professor and head of the Department of Psychiatry 
and Neurology and Behavioral Sciences at the University 
of Oklahoma, School of Medicine, in Oklahoma City.

Q. Doctor, would you state—refer to your education? 
Where did you take your training and what are your de­
grees? A. Well, I  had my undergraduate training at the 
Universities of Wisconsin, Iowa and Minnesota. My de-



32a

grees are Bachelor of Science from Minnesota in 1946; 
Bachelor of Medicine, Minnesota, 1948; Doctor of Medi­
cine, Minnesota, 1949. I was graduated from the medical 
school in 1948 and received a doctorate after completion 
of a year of internship, as was customary then, until 1949.

Q. Where did you take your internship, Doctor! A. 
At the University of Minnesota Hospitals from 1948 to ’49.

Q. And since that time with what hospitals and educa­
tional institutions have you been connected! A. I  was a 
resident in psychiatry at the Payne-Whitney Clinic of the 
New York Hospital, Cornell Medical Center in New York 
City, from 1949 to ’52; and during the last year of that 
period I also served as associate in psychiatry on the 
Cornell University College of Medicine. Prom 1952 to ’56 
I was a Major in the Air Force, Chief of the Psychiatry 
Service at the Lackland Air Force Base Hospital, San 
Antonio, Texas. And overlapping the last two years of 
that period, that is from September, 1964, until the pres­
ent, I was simultaneously on the faculty of the University 
of Oklahoma, as I have stated.

Q. In addition to those matters, are you in association, 
and have you been in association with, the members of the 
psychiatric specialization of medicine beyond those within 
the institutions that you have mentioned? A. Yes, I have 
served as consultant to a number of local and state and 
national organizations; I was national consultant in psy­
chiatry to the Surgeon General of the Air Force from 1958 
to 1963. I have served on the editorial board of several 
medical and psychiatric journals; as a consultant to the 
National Aerospace Program; to the United States Com­
mittee of the World Medical Association; as vice-presi­
dent of the Pan American Association; I am a past presi­
dent of the Southern Professors of Psychiatry. At the 
present time I am serving on the National Advisory Men­
tal Health Council to the Surgeon General of the United 
States Public Health Service; the National Advisory Com­
mittee on Alcoholism to the Secretary of Health, Educa­
tion and Welfare; and either now or in the past have



33a

served maybe 15 or 20 other agencies or organizations as 
a consultant.

Q. Beyond this what organizations of a professional na­
ture are you a member, or have you been a member of? 
A. Well, I belong to somewhere between 25 and 30 pro­
fessional organizations. I am a fellow of the American 
Psychiatric Association and have served for three years 
on their committee on research, six years on their com­
mittee on program; I am a fellow of the American As­
sociation for the Advancement of Science; a fellow or 
member of a number of other organizations, including the 
American Psychosomatic Society, American Medical As­
sociation, the Society for Psvchophysiological Research; 
the Pavlovian Society; the Academy of Psychoanalysis; 
the Aerospace Medical Association; and so forth.

Q. And in what organizations have you held offices, or­
ganizations of a professional nature? A. Well, in each of 
those I mentioned.

Q. Well, you held office in each one? A. Well, I have 
held the offices mentioned.

Q. Have you had occasion during the course of your 
career to study the effects of confinement on humans? 
A. Yes, I have.

Q. And would you indicate in a general way what the 
nature of those studies have been and with what organiza­
tions you are conducting the work? A. Well, I made 
considerable studies of prisoners of war among my publica­
tions, a monograph, partly classified and partly not, on the 
subject of prisoners of war; a number of articles on the 
effects of forceful interrogations and so-called brain-wash­
ing of American prisoners by Chinese Communists and the 
effect of various procedures upon the health of people 
under confinement and other extreme conditions.

Q. Referring to what you have just mentioned, in what 
connection were you conducting those studies? A. Well, 
initially as an Air Force officer assigned to study the prob­
lems, particularly of forceable interrogations of Air Force 
officers who gave confessions of German warfare during 
the Korean conflict and subsequent to the time I left the



34a

Air Force on a contract basis with the Air Force Intelli­
gence Besearch Laboratory.

Q. On the same subject, Doctor? A. Yes.
Q. And did these studies consider individual ease his­

tories! A. Yes, they did.
Q. And did any of those case histories include the fact 

of the pendency or expectation of probable death? A. Yes.
Q. And in the course of this research, did you consider 

the relationship, if any, between the expectation or prob­
ability of death as one of the incidents of confinement in 
relation to the behavior of the persons studied? A. Yes.

Mr. Johnson: Your Honor, I will object to that as 
having no relevancy or materiality. We have gone 
through the distinction between conditions elicited 
from Dr. West as far as prisoners of war, which is 
not the subject under consideration here, and it just 
has no relevancy at all.

The Court: Well, I  was just about of the same 
mind until you got down to the last part of the 
problem of death. I believe it is relevant. Overruled. 
Proceed.

Mr. Gottlieb: I am not sure whether the question 
was answered. Do you have the question in mind?

The Witness: Yes, and the answer is yes.

By Mr. Gottlieb:
Q. And  ̂do you have as part of your information as to 

these subjects the length of time during which a confine­
ment, well, you know these facts as well? A. Yes, not only 
in relationship to the prisoners of war but also subse­
quently in relation to prisoners under other conditions, 
criminals who have been convicted in more than one state.

Q- Dr. West, rather than my going into, asking you de­
tailed questions, I will now ask you to refer to those studies 
and to those parts of those studies that involve cases of 
extended confinement with the pending expectation or prob­
ability of death, describe them to the extent that you can 
describe also what you consider to be the effects on be-



35a

havior and on the existence of the subjects which you 
studied. I may have left that very broad, but will you 
proceed from there? A. May I just respond to that in a 
historical way. Well, let me start out by saying that my 
areas of research in psychiatry have ranged rather widely 
from the biological aspects, of brain behavior, to issues 
in relationship between social and cultural areas and be­
havior and that the report of these variations have been 
published in some 70 or more articles and books and that 
many of these different aspects of my own are involved 
with the question of the death penalty and the effects of the 
expectation of death on prisoners only after I had myself 
participated in the study. Prior to that time I had no spe­
cial opinion on the subject.

However, since July of 1952 when I served as a par­
ticipant in an execution as the medical examiner, a hang­
ing in Iowa, I was impressed with the nature and the 
complications of the problem and began to study it from 
a scientific point of view and have continued now through­
out the years.

My opinion at this point, based upon the observations 
of prisoners, upon my work as an educator with the police 
and drawing even upon some of my own experiences during 
World War II as an enlisted man while I served for awhile 
in the Military Police, all leads me now to the view that 
the death penalty is not only useless to society either as a 
deterrent or for any other purpose but is a harmful in­
fluence for several reasons.

Q. Nov/ as you proceed, would you refer, Doctor, to the 
studies which were referred to earlier that you did in con­
nection with the Air Force, at a later time going into other 
aspects of these studies? A. Well, in some ways the stud­
ies that were done of prisoners of war, men who gave false 
confessions of germ warfare, merely served to instruct me 
and my colleagues who were with me on this question of 
how relatively easy it is for a determined captor to give 
almost any kind of testimony from someone over whom he 
has control. I t isn’t even necessary, as was shown in many



36a

instances, to nse elaborate physical torture if you have 
enough time with the prisoner to get him to confess to 
something that he has not done or even to convince him in 
some instances that he has in fact done something that he 
has not done.

Q. Now referring to the series of cases or the cases which 
are the subject of my question which involve the pendency 
of or the probability of death, how many cases did you 
consider? A. Well, of the eight Air Force prisoners that 
were studied in the particular research mentioned, well, of 
the Air Force prisoners there were some 86, and about 
three-fifths of these men were given what we considered 
to be the full treatment by their captors, made at one time 
or another false confessions of germ warfare and of the 
other defamations, I would say follows with great assur­
ance.

Q. As to what extent, what part of that treatment that 
you mentioned in your opinion, as to what extent was the 
factor of the pendency of death a factor in causing them 
to break down? A. I  don’t know what you mean by depen­
dence.

The Court: The pendency.
Mr. Gottlieb: Pendency. I will do it again.
The Witness: The likelihood of impending death.
Mr. Gottlieb: To what extent was the expectation 

or the effect of impending death, the pendency, based 
upon in your studies—•

Mr. Leavy: I  object—•
Mr. Gottlieb: Let me finish my question, counsel—• 

a factor in causing the behavior that you have re­
ferred to?

Mr. Leavy: I object to the subject matter relating 
to obtaining confessions, false or true, as now per­
taining to the issues at hand.

The Court: Do you want to be heard?
Mr. Gottlieb: Well, your Honor, I am still at­

tempting to complete the description of the circum­
stances from which we can then draw the question,



37a

finally, of the availability of the experience and try­
ing to determine now as part of the foundation on 
this particular fact.

The Court: It will be overruled.
Mr. Gottlieb: You may answer.
The Witness: Well, I really don’t think that the 

expectation of death played much of a part in these 
Air Force prisoners. They were very uncertain 
about what might be done with them. I believe that 
uncertainty itself and the special circumstances of 
confinement, particularly social isolation and sleep 
loss, were the principal factors in breaking down 
their resistance; plus the tendency I think that any 
person develops very rapidly in a situation of con­
finement and complete dependency on other people, 
to do or say whatever is required, expected or even 
desired of them, simply because of the emotional 
regression that takes place under those circum­
stances.

By Mr. Gottlieb:
Q. After you completed these studies did you then make 

any further studies of persons in confinement? A. Well, 
since those days I have been increasingly interested in 
the factors that contribute to violence in our society. And 
in connection with this I have had occasion to examine a 
number of individuals involved in acts of violence, both 
victims and perpetrators; some before trial, some after 
sentences of various kinds, and some who have been await­
ing the death penalty.

Q. N ow referring to that group that were those who had 
been condemned to death, would you describe the nature of 
the studies that you made of that group? A. Well, these 
have been mostly in the nature of psychiatric examinations 
and psychological testing and—

Q. Where was this conducted? A. In prisons, either in 
Oklahoma or Texas.

Q. And were these a series of case studies as well? A. 
I ’m not sure I  could call them a series of case studies.



38a

Q. I mean did part of tlie study involve your direct con­
sultation or interviewing of the prisoners? A. Yes.

Q. And was part of this study based upon your refer­
ence to clinical or these reports of other such cases in the 
literature! A. Yes, other cases reported in the literature 
and also discourses with colleagues, prison psychiatrists 
and people involved in forensic psychiatry in other parts 
of the country with whom I increasingly have been inclined 
to compare notes.

Q. Did any of these cases which you studied involve 
persons in whom the appearances of mental disease oc­
curred after confinement? A. Yes, very definitely so.

Q. Do you have any of those particular cases in mind? 
A. Well, one of my most—

Q. I take it you do? A. Yes, I  do.
Q. Would you now refer to them, and in doing so pre­

sent those details that you considered to be, or to have been 
important in your evaluation of the relationship between 
the confinement and the condemnation and the mental dis­
ease? A. Well, first let me say that each prisoner is an 
individual and no two are the same. Some are very severely 
affected by the Death Eow type of situation; others appear 
on the surface to be relatively calm there. It seems to me 
that it is possible to identify certain states, certain mental 
states among prisoners on Death Row, and these states 
can change. A man can be in one state and move to an­
other. I think a very common state of prisoners, especially 
shortly after sentencing, is one of detachment or numbness; 
a person is in a state of emotional shock and doesn’t really 
seem to grasp the significance of the death penalty or what 
it implies for his own future. It is as though he can’t 
imagine this all really happening, and such people will say, 
“It’s as though the whole thing is happening to somebody 
else and it doesn’t seem real.”

Then there is the state of mind in which what you might 
call personality defenses are working very well, and a per­
son tries to think of all kinds of ways in which the ultimate 
outcome will not transpire. His hopes will materialize 
around various prospects—that his sentence will be com-



39a

muted, that new evidence will turn up that will help him, 
that the death penalty will be abolished before he is exe­
cuted, and so on and so forth. Such individuals may appear 
to be quite cheerful at times and the fact that they are 
whistling in the dark, so to speak, only becomes obvious 
when you get beneath the surface a little bit either through 
interviews or psychological testing.

Then there is a third state of mind that also doesn’t 
look too bad from the outside; it relates to a point I ’d like 
to make when you give me a chance to ; about certain indi­
viduals who are on Death Row because they want to be. 
These are individuals that I believe commit capital crimes 
in order to get themselves executed. They are not a large 
group but a very important group, and while they are on 
Death Row they frequently exhibit a kind of tranquility 
that is very hard for those around them to understand 
without appreciating the psychopathology that brought 
them there.

Finally, counselor—if I may complete my answer—there 
is a group of prisoners who suffer a kind of torment that 
is very difficult to put in to words. These are individuals 
who may at one time or another have been in any of the 
first three categories, who have come to grips with the fact 
that they are going to die. And the idea of being helpless 
and a captive in the hands of those who are in a position 
to keep them alive or to put them to death—the idea that 
they are actually going to be put to death—then consti­
tutes a form of agony or despair that has no counterpart 
in ordinary medical practice, physical disease, or even 
psychiatric illness.

Q. Would you describe, Doctor, referring to one of those 
groups, that is the group that you mentioned that is found 
to have mental disease present, can you refer to some of 
those particular cases and describe the particular findings ? 
In other words to review very briefly some of these case 
histories of those who were found to be afflicted with mental 
disease when confined in a Death Row, that is, awaiting 
death ? A. Well, perhaps an illustrative case would be the



40a

case of Jack Ruby, an individual that I examined a number 
of times subsequent to his conviction and the passage of the 
death penalty against him. During the period after his 
conviction he was in stage one, or condition number one of 
those that I described—shock.

Soon thereafter he apparently came to grips with his 
fate and was totally unable to accommodate himself to the 
idea that he was going to be put to death for the crime that 
he was convicted of. And very rapidly he became delu­
sional, hallucinated, suicidal, and developed a substantial 
mental illness that persisted in fact until his death; and 
which may have contributed to it, as far as that goes.

Q. Any other examples that you can refer to, Doctor, in 
that category! A. Well, there are many examples in the 
psychiatric prison literature of mental illnesses that tran­
spire among the inhabitants of Death Row, and since last 
year there were somewhere between 400 and 500 men on 
Death Row and only one executed—obviously this is a 
pretty sizable population living under stress.

Q. Have you had occasion to consider the relationship 
between physical and mental pain, that is, between the im­
pact of stress on the body as such and that of the stress, 
fear, the expectation of death, the anxieties involved on the 
other—have studies been made that would shed light on the 
relationship between these two phenomena? And if so, are 
you familiar with those studies! A. Yes, I am familiar 
with those studies. I have carried out such studies myself. 
It is possible to measure the degrees of intensity of physical 
pain through the use of objective instrumentation. The 
Hardy■-Wolff-Goddell apparatus for measuring the in­
tensity of noxious stimulation and the subjective responses 
to it, make it possible to define approximately 21 incre­
ments of discernible change and pain experience. These 
have been put together into a scale, a so-called Dol Scale 
which has ten and a half points, each containing two incre­
ments. When you reach ten and a half Dols of painful 
stimulus, it can’t hurt any more than that; that’s the maxi­
mum amount of pain a person can feel, and increasing the 
amount of painful stimulation, whether it be burning or



pressure on the hone and so on, does not produce an addi­
tional degree of pain. It has been my experience that cer­
tain individuals who are actually subjected to torture, know­
ing about this and having been engaged in such experi­
ences, as in a laboratory—I am thinking now here of certain 
physicians who were trained with Dr. Wolff and then who 
were subsequently captured, first by the Japanese and later 
in Korea, and subjected to some very painful stimulation, 
found comfort in the knowledge that things could only hurt 
so much. Biologically there was a limit, and they knew what 
that limit was and were able to endure.

Whereas in the psychological sphere, the type of anguish 
that comes from the knowledge that there are others in 
whose hands are helpless, who will when the time comes 
destroy us, doesn’t seem to have any limit; there is no way 
to measure it; and I would regard such a torture as more 
severe than anything that could be inflicted by thumb 
screws, racks or pain machines of the kind we use in the 
laboratory.

Q. To what extent, Doctor, in your professional opin­
ion, can the application of the mental stress, the mental 
pain that you have mentioned, be a factor in the causing 
of insanity? A. Well, I believe that it can be causative 
of mental illness either temporarily or permanently, and 
that this indeed takes place in Death Row type of situa­
tions all the time. That doesn’t mean in all cases, but that it 
is going on all the time, as long as you’ve got a Death Row.

Q. And in your opinion what significance does that 
phenomenon and causal relationship that you have just 
mentioned have in indicating the extent, the quantity of 
mental pain involved ? A. Well, there is—I don’t know how 
to answer that question. Could you rephrase it?

Q. Yes. You have indicated that there was a ceiling in 
effect on physical pain, there is a limit beyond which the 
stimulus cannot result in a further increase in the degree 
of physical pain. You have also indicated that as to what we 
will call for the moment—and I may be inaccurate in refer­
ring to your testimony—as mental pain, that this has been 
a factor in causing of insanity. Now what I am asking is



42a

whether that last statement, that is, that last fact, is one 
that indicates the extent to which, the quantity of mental 
pain, if there is such a thing as a quantification, is involved 
in the pendency of death on Death Row1? A. I would say 
so far as one could take derangement as a result of severe 
stress in life, that these findings would suggest very 
strongly that the degree of mental pain and anguish or tor­
ment experienced by people under these conditions is 
greater than that resulting from any kind of purely physical 
pain, and that there is no method for measuring it, be­
cause the types of techniques that we use to measure physi­
cal pain reach an end point, whereas there is no end point to 
this other kind within the bounds of sanity.

Q. Within the bounds of sanity you say. Well, now can 
it be said, is there a limit, is there a ceiling, on mental 
pain other than that which might result from the production 
of an insanity1? A. I don’t know of any ceiling on it. I  have 
no way to measure it.

Q. Is it your testimony, Doctor, that there is a ceiling 
on physical pain? A. That is correct.

Q. But this is a stress which produces anxiety and it will 
continue to increase as mental pain, as the stress and 
anxiety increases? A. Yes, that seems to be correct.

Q. Without limiting, except the limitation that comes 
within this, is that your testimony? A. That is right.

Q. Does that mean that any conclusion can be drawn 
as to the comparative relationship between that physical 
pain which might be induced by physical torture and, on 
the other hand, a mental pain which might be induced by 
the pendency of death, one or the other? A. What it sug­
gests is that ultimately at least the degree of suffering in­
volved in mental pain is capable of being greater in terms 
of human experience than that involved in this kind of 
physical torture.

Q. The case cited in 1959 by the United States Supreme 
Court, of Trop vs. Dulles, and in which the punishment 
was the creation of a condition of statelessness, deprivation 
of citizenship, to which the court said the punishment was 
illegal because, among others, trying to subject an indi-



43a

vidual to an ever increasing amount of fear and distress, 
and now can you compare, Doctor, based upon your under­
standing, your experience, your clinical evaluations and 
your readings, is this kind of degradation of fear and dis­
tress imposed upon a Death Row inmate, how is it as com­
pared to that imposed in the case of this kind that I ’ve just 
described ? A. I would regard it as substantially greater; 
in other words, while depriving the person of his citizen­
ship suggests a terrible loss of support by the parent 
society, the Death Row situation employs not only loss of 
support but the ultimate threat by the parent society, 
namely, that of destruction. There are many reasons based 
upon research and human development that I believe this 
is the most severe stress that is possible for a human be­
ing to experience.

The Court: We will take the afternoon recess.
(Recess.)
The Court: People vs. Thornton. Let the record 

show the parties and counsel are present.
Mr. Gottlieb: Dr. West.
(The witness resumed the stand.)

By Mr. Gottlieb:
Q. I referred very briefly to your professional writings, 

that is, writings that you have produced for professional 
journals and, Dr. West, would you indicate some of the 
writings that relate, that is, the problems, the matter of 
pain and suffering and confinement that is the subject of 
your earlier testimony. A. Well, if I were to list articles 
that bear upon my earlier testimony they even really go 
further than that. There is a monograph entitled “Ex­
plorations in the Physiology of Emotion” and other works 
on the effects of prolonged stress, and I have published 
articles on problems like brain-washing, racial violence and 
other aspects of violence, conflict between one man or 
groups of men and each other which I believe are relevant 
to this.



44a

In addition, there have been articles on pain, sleep loss, 
sensory isolation and various types of stress, all of which 
I think are relevant to the question of why people suffer 
who are on Death Row and what the nature of that suffer­
ing might be.

Q. Now, Dr. West, you have testified just before the 
recess that as to the comparison between the physical pain 
which can be produced by stimuli on the body and in fact 
there is a maximum, which the body of experience of pain 
will not increase, and you have also testified that there 
is no ceiling with respect to mental pain. Would you indi­
cate why that is true! A. Well, in somatic pain, physical 
pain, you are dealing essentially as a matter of the brain, 
not of information flow of the periphery of the body to the 
center, a line in the neurons or nerve fibers which only carry 
so much. At that point, unless you have got a maximum 
amount of information coming in that total, not just stays, 
well, just stays so long and it can’t hurt any more, but the 
suffering of the kind that people undergo under the con­
ditions of Death Row, even under stress and the very nature 
of what it means to the human being, the things that I have 
defined as human beings from other animals who also ex­
perience physical pain and have feelings, and that is the 
same apparatus except in human beings it is developed 
in a different way; our nervous system works faster than 
the rest of our body in comparison with other species and 
those of us, even while we are perfectly capable of realiz­
ing our circumstances in childhood, every child who sur­
vives then has done so in relationship to other human be­
ings and on whom he is totally dependent for the sustenance 
of his life and also is inescapable to withdrawal of the sup­
port destroying him. If he feels from this threat to the 
psychological integrity of the human being as opposed to 
any other kind of creature, that in which the parent or 
parent society or culture or nation or what it is withdraws 
his support, and an example that you gave of a recent case 
in which this was found to be the loss of citizenship was 
found to be an unduly harsh punishment, I think that is 
quite justified on that basis because the country or the



45a

society, the community, is in fact an extension of the 
parent to the individual. It is a part of that body of other 
people on whom you are dependent for life and support, 
our own humanity.

Now, when the State decides to not only withdraw its 
support in the form of citizenship, but goes beyond that 
to the ultimate point of saying, “We will now destroy you as 
a person, and we choose to do this—it isn’t forced upon us, 
it isn’t necessary, you are helpless, you are captive, you 
have no recourse, impose no threat; but we will destroy 
you anyway.” This attacks the very fiber of the individual’s 
humanity because that is the way he became a human being, 
therefore the suffering that derives from that, I believe, 
is the most intense of all.

Q. Doctor, considering the fact, as has been stated by a 
previous witness, that the average stay on Death Row has 
been, at least during some years, a thousand days; con­
sidering then the projection of that which you have de­
scribed over a period of a thousand days, would you state 
what you can of the comparison between that experience 
under the pendency of a death sentence, and the experience 
of physical tortures applied to the body? A. Well, there 
are many painful illnesses known to people; some of them 
go on for years, and while man can be tormented through 
physical illness to the point that he may seek his own 
life or something of that sort, it is not common to see a man 
driven to the point where he loses his identity, which is to 
say, develops a significant psychosis, mental illness, in­
sanity, madness.

Q. As the result of physical pain? A. As the result of 
physical pain or disease alone. The Death Row situation, 
which might have been termed a thousand days once—it is 
probably a good deal longer than that now—even allowing 
for periods during which a person has fluctuated between 
hope and despair, the periods of hope are always followed, 
when they are followed, by periods of despair that much 
worse. Under these conditions it is not uncommon, as every­
one knows, for prisoners on Death Row to develop either 
temporary or, in many instances, permanent mental de-



46a

rangements. And of course what happens under these con­
ditions is kind of paradoxical—the patient gets sent then to 
an institution for the criminally insane, and the physicians 
there are put in the peculiar position of being asked to 
cure a man of his mental illness so he can be sent back 
to be executed. In point of fact, this almost never happens, 
so you have people who really remain in the facilities for 
the criminally insane for indefinite periods of time.

Q. Doctor, did you have a meeting during the past year 
with members of your profession and specialization at 
which the death penalty was considered! A. No, not 
within the past year but—

Q. Or two! A. At the annual meeting of the American 
Psychiatric Association in Atlantic City in May of last 
year, the death penalty was discussed for the whole of an 
afternoon by, I would estimate, a couple of thousand mem­
bers of the American Psychiatric Association, by several 
colleagues from other fields and myself.

Q. Referring to the question of whether the death pen­
alty is cruel, was any conclusion reached by that body!

Mr. Busch: Objected to as calling for hearsay.
The Court: It will be sustained.

By Mr. Gottlieb:
Q. Did you, as the result of that experience, learn 

whether there was a relationship between the standards 
of humanity, as understood by psychiatrists, and the death 
penalty!

Mr. Busch: That I would object to as being irrele­
vant and immaterial.

The Court: It will be sustained.

By Mr. Gottlieb:
Q. May I address the Court on both matters, your Honor!

The Court: Yes.
Mr. Gottlieb: We offer to show, your Honor, and



47a

this is the reason for the question, that in a body 
composed of men of excellence in their field and 
representative of the psychiatric profession, and who 
deal with the problem of understanding of humans 
and of the human state, that the group with sub­
stantial unanimity concluded that the death penalty 
was a violation of the—

The Court: Are you testifying? I ruled on that 
as being hearsay. You are not putting that into the 
record by way of argument on an objection. When 
you get up here to make an argument, make the 
argument on the point and not a lot of other business 
which you want to get in the record. I am going to 
put a stop to that. You argue the point and stay with 
it.

I  think the question is also vague; that would be 
an objection I would have to it.

Mr. Gottlieb: I will restate the question, your 
Honor.

Mr. Wirin: May we have just a moment, your 
Honor?

The Court: Yes.
(Counsel for defendant confer.)

By Mr. Gottlieb:
Q. Dr. West, is the opinion which you have given as to 

the extent of mental suffering and pain based to any ex­
tent on the considerations that you have given to the mat­
ter in consultation with other psychiatrists? A. Yes.

Q. And in part has it been based upon the transactions 
of the meeting to which you have referred? A. I would 
say yes to that, with the understanding that these don’t 
constitute a scientific poll of the profession by any means, 
but would represent what I consider to be naturally a 
group of people who have a special interest in this problem, 
and had looked into it in a way similar to the way that I 
had looked into it. In other words, I  know a great many



48a

psychiatrists who feel as I do on this matter, but I would 
not offer to speak for the profession or to propose that I 
could state what percentage of my profession would agree 
with me.

Q. You base your opinion, however, on your consulta­
tions with members of your profession on the subject! 
A. Well, I feel—my contact has been with those members 
of my profession who have investigated the subject along 
the same lines that I have; those are the ones with whom 
I have consulted and whose writings I have read and so on. 
There is no question just from the scientific literature and 
what has been published along these lines that virtually 
everyone who has studied this question has come to pretty 
much the same conclusion, namely, that this is a very 
severely stressful circumstance—that of Death Eow—and 
that the morbidity of the individuals who are subjected to 
it is very high.

Q. In your opinion, is the maintenance of capital punish­
ment cruel! A. Yes, sir, in my opinion it is.

Q. And in your opinion is the maintenance of capital 
punishment the maintenance of a form of torture as to any 
substantial component of the Death Row population! A. 
Insofar as torture might be seen as the deliberate infliction 
of unnecessary suffering upon individuals helpless to 
escape, I would say definitely yes.

Q. Dr. West, have you had occasion to inquire into the 
effects of the presence of the institution of capital punish­
ment on crimes of violence! A. Yes, I have, and if I  may 
state my conclusions on this subject—

Q. Please do. A. —there are three ways in which I feel 
that the existence of the death penalty in any given state 
or country has an untoward effect upon the population 
with regard to violence among them.

The first effect is one that has been noted by many others, 
particularly by Albert Camus, which is that the state, by 
taking life, deliberately offers an example of violence, so 
that people are growing up in a community where from 
time to time lives are taken, are exposed to an official



49a

climate of life-taking, which, is bound to have an untoward 
effect upon them.

The second proposition, and this has been put forward 
by a number of behavioral scientists in the western world, 
is that the state, by offering an example of solving prob­
lems by killing people, essentially instructs the young that 
this is one way to solve problems, and thereby makes it 
more likely, in some ways that it is very difficult ever to 
measure, that violent solutions will be sought by such 
individuals.

The third, and from the point of view of my own experi­
ence the most specific way in which I believe the death 
penalty acts to perpetrate violence rather than prevent it, 
is through its stimulation of certain abnormal people to 
commit crimes of violence in order to force the state to 
commit the ultimate act of violence upon them.

Now we know that people who commit acts of violence 
tend to be very self-destructive also. In countries where 
better statistics are available, this has recently been very 
well documented; for example, in a book published 18 
months ago by D. L. West of Cambridge, a criminologist. 
He pointed out that in Britain in recent years one-third of 
all individuals who committed homicide eventually took 
their own lives.

In Denmark it was 40 per cent.
Now the cases that I have seen have been individuals 

who committed murder, either consciously and deliberately 
in order to force the state to execute them; or without 
fully realizing that this was their intention, but neverthe­
less primarily motivated by this.

The only man executed in the United States last year 
was James French, a man who came from California, 
where he had committed some murders for which he was 
never caught, to Oklahoma where he committed a murder; 
and at his trial he requested the death penalty, but he got 
life imprisonment because his attorney had pleaded him 
guilty—his court-appointed attorney. He made a great 
to-do about this and protested; he wrote a letter to the



50a

Judge, lie wrote letters to the Supreme Court and so on 
and so forth, and to the Governor, indicating that he felt 
that he should have been executed and why hadn’t they 
done it. When these various recourses did not produce the 
desired result, James French one day, after carefully mak­
ing preparations beforehand, strangled his cell mate to 
death, the cell mate being a man against whom, by his own 
admission, he had no grudge.

Thereupon he presented himself to the Warden and 
said, “Now I believe the State of Oklahoma will execute 
me as it should,” and it took three trials after that, and 
considerable expense to the state—because of course this 
procedure can be enormously expensive—but eventually 
after haranguing the jurists himself and insisting that they 
invoke the death penalty on him if they weren’t hypocrites, 
James French finally last year got the execution that he 
desired.

Now he killed at least two people that I know of in order 
to bring that result about.

There is another prisoner in Oklahoma today who com­
mitted several acts of violence in a conscious attempt to 
produce the death penalty or to get it invoked against 
himself, and the incidence of other such cases is well 
known; it has been described by people like Professor 
Sellin, Karl Meninger, Frederick Wertham and a number 
of others who have written on the subject; but since I am 
not primarily a forensic psychiatrist, the frequency with 
which I have encountered this myself is so high as to make 
me suspect that it occurs more frequently than our records 
and statistics would lead us to expect.

About two years ago an Oklahoma truck driver stopped 
at a Texas cafe to get a sandwich; a stranger walked in the 
door; a farmer from nearby came in and blew him in half 
with a shotgun. When the police came to take the shotgun 
away from him and asked him why he had shot a perfect 
stranger he said, “I was tired of living.” This man was 
mentally unbalanced, but he lived in Texas and he was in 
good enough contact with the laws and practices of the



51a

state to expect that having killed somebody, he would in 
turn be killed.

In addition studies of individuals who wrere convicted of 
murder that, they did not commit themselves, borrowing 
somebody else’s homicides, so to speak, which suggest 
that at least a substantial portion of these people are seek­
ing the province of execution that the State seems to offer.

Now it seems to me that when you have practice in a 
society that obviously does so much mischief and creates 
so much trouble without doing a particle of good, as Pro­
fessor Sellin’s research has developed over a period of three 
years, and has made abundantly clear to me, it should be 
thoroughly explored on the subject of defendants that we 
are out to get rid of and, furthermore, it seems to me that 
people know that and so that every year the number of 
executions dwindles down to the point where now there 
probably will be 10,000 people slain in this country this year 
and so for only one execution that is no longer really a prac­
tical solution.

The Court: We are not talking about abolition. 
We are talking about cruelty of the death penalty 
and not abolition.

The Witness: Yes, sir, I am sorry. I got carried 
away.

The Court: Let’s not go on with that lecture. I 
don’t like to cut you off.

The Witness : I understand.
The Court: It is all very interesting.
Mr. Gottlieb: No further questions.

Cross Examination by Mr. Johnson:
Q. Dr. West, I am Bob Johnson, Deputy District Attor­

ney. A. Yes, sir.
Q. From the context of your words it appears that you 

are definitely against capital punishment, is that correct? 
A. I have become so.

Q. Do you feel your mind is in such a state that it is 
still open to persuasion or unalterably reasonable argument



52a

to the contrary? A. All of my convictions are held open 
until further notice.

Q. Tour mind is open? A. Yes.
Q. Are you a member of any organizations, societies, 

foundations, fellowships or anything that have as one of 
their tenets or principles the abolition of the death penalty? 
A. No, I am not.

Q. You on occasions have appeared before legislative 
hearings or the like to express your views on the abolition 
of the death penalty? A. No, I have never done that al­
though I have lectured in opposition to it recently.

Q. Dr. West, in listening to you and listening to some 
of the instances that you cited it seems that many of these 
examples come to with somewhat degree of—with what you 
have, and you might have spoken of these examples before, 
is that roughly correct? A. Yes, these are examples from 
my own experience that I am very familiar with.

Q. You have lectured on some of these examples before, 
have you? A. Recently, yes.

Q. You told us of your employment by the University 
of Oklahoma and then you told us of your membership in 
some 24 fellowships and societies? A. Rough estimate.

Q. Was that a minimization of the number of societies? 
A. It is a minimum figure.

Q. In excess of 24 then. Do you also have a private prac­
tice? A. No, I really am not in private practice.

Q. Are there occasions when you see individuals in your 
busy schedule? A. Yes, I do see some patients in private 
consultation.

Q. And then there are these speaking engagements that 
you have around the country, is that correct? A. A cer­
tain number.

Q. And in addition to those obligations and commitments, 
is it also true you are appointed by the courts of Oklahoma 
and Texas on occasions to examine individuals that have 
been convicted of crimes? A. Well, these occasions have 
been relatively rare but I have done this.



53a

Q. And there have been occasions that yon have gone to 
the Death Rows of Oklahoma and Texas and have these 
all been court appointments or instances where yon have 
been retained by private funds'? A. Let me put it this way, 
counselor. I have never examined anybody under these 
circumstances for a fee. I have either served as a friend 
of the court or for a favor either to a judge or to a court- 
appointed attorney and even when I did not come into the 
case as amicus curiae, I always write a report that I sent 
to the judge and to both sides.

Q. There have been how many instances then that you 
have visited individuals in Oklahoma and Texas, the total 
number, the total number of individuals, please. A. The 
total number of individuals of what description ?

Q. On Death Row in Oklahoma and Texas. A. Well, 
let me put it this way. Since Death Row isn’t always a 
place, if I were to estimate the total number of individuals 
I have seen who have been convicted of capital crimes, and 
this was either before or after conviction or in relation­
ship to such, I would estimate it, I would say around a 
dozen.

Q. That would be roughly divided between the two states 
of more or less the same number for each of the two states? 
A. No, I would say about two to one in favor of Oklahoma.

Q. Then in each of these instances, say 8 to 4 for Okla­
homa and 4 to 8 for Texas, and have you made it your 
practice to read the entire transcript of the trial? A. If 
there had been a trial beforehand, and if the transcript 
was available to me, I  have done so. In the Ruby case, for 
example, at the time I was called in the cell by Dr. Smith 
who was then temporarily serving as his attorney, there was 
no transcript available because Ruby was bankrupt and 
they couldn’t afford it. I  didn’t have it, at least it wasn’t 
available to me.

Q. Just to be sure we understand each other, these 12 
that you mentioned in Condemned Row, these 12 people, 
had they had trials, were they pending trial of capital 
cases or were these 12 convictions? A. No. I can say they 
were 12 who were condemned.



54a

Mr. Gottlieb: Let him finish his answer.
The Court: I thought he had finished his answer.

By Mr. Johnson:
Q. Just how many was it that were actually condemned! 

A. People that I have seen after they were condemned!
The Court: That is what he wants.
The Witness: Well, I  guess I would place that at 

about 8 or 9 and then I would toss in a couple of those 
who were not in Oklahoma or Texas but in other 
countries or, well, I was thinking of one case in the 
Federal Prison but that was not a death penalty case.

By Mr. Johnson:
Q. And in every instance where there was a transcript, 

you have read the transcript in its entirety, is that correct! 
A. In every instance if there was a transcript available 
to me, I have read it.

Q. So that on occasions you may have to read as many 
as 5000 pages of trial transcript, roughly, is that correct! 
A. I can’t say how many pages but I have read a lot of 
pages of trial transcripts.

Q. Going back to your position you stated at the start 
you are opposed to the death penalty regardless of the 
nature of the crime and number of killings and the wanton­
ness of the killing and the premeditation, of whether trea­
sonous, or whatever it might be, you are opposed to it! A. 
I have become so, yes.

Q. In other words, in conclusion, in seeing these indi­
viduals these 8, 9 or up to 12, had you made an effort to 
study their backgrounds, the nature of the crime committed, 
their background prior to the commission of the crime that 
occasioned imposition of the death penalty! A. Yes, I 
have.

Q. And that you heve done from all of the instances 
where you have made studies! A. Wherever possible, in 
fact, I have even endeavored particularly hard to do that 
since that is the greatest area of my interest.



55a

Q. Incidentally, Doctor, did yon ascertain the nature of 
the defendant’s crime here? A. I know about it only very 
slightly. I don’t know the case. I have not read the tran­
script and I am not familiar with any of the details.

Q. Just out of curiosity would you mind stating it?
The Court: Counsel, what relevancy is that?
Mr. Johnson: I will withdraw the question.
The Court: All right.

By Mr. Johnson:
Q. Now as far as these occasions that you have been to 

Death Bow in Texas and Oklahoma and elsewhere, when 
you examined the individuals, it was with the knowledge in 
your mind, and this is a question, that those individuals 
wanted off Death Bow, is that correct; they wanted to get 
out of Death Bow without imposition of the death penalty? 
A. No, sir, and take the case of French, for example, and 
I knew that here was a man who invited execution and who 
was there by his own request. That was a matter of public 
knowledge and I was quite curious about him.

Q. Of course, individuals do these things for many rea­
sons and were you aware or did you know whether this 
French was just trying to secure a little notoriety or some­
thing like that? A. Well, sir, I am not omniscient, but 
when you come to an examination, sir, I am a psychiatrist 
and I think that most of the time I am eliciting material 
that is genuine and when a patient is malingering, we usu­
ally can detect it, with exception.

Q. Fine, with exceptions. You have seen individuals 
that wanted to be on Death Bow, that wanted the death 
penalty, and others that wanted to get off Death Row with­
out imposition of the death sentence, is that a fair state­
ment?

Mr. Gottlieb: I object to that as being an im­
proper assumption.

The Court: I don’t think that is objectionable on 
that ground.



56a

By Mr. Johnson-.
Q. Is that a fair assumption, whether or not you ex­

amined the patient with that thought in mind! A. Eeally, 
I can’t answer that question in the affirmative because I 
think of these individually and you just can’t generalize. I 
could think of one example, the Euby case, where the man 
really did not want to leave where he was because he was 
delusional and he felt that if he was taken away, it meant 
he was going to be tortured to death and he wanted to stay 
where he was. He felt there was no likelihood or possibility 
that he could possibly be reprieved or that any appeal was 
possible because he was convinced that he was going to be 
put to death as a result of a plot that had never occurred 
in public and his public trial was just a mockery.

Q. Pine, Doctor. And maybe we can come to the point 
a little more rapidly. You don’t take these individually, 
except maybe with the rare exception such as French, that 
had any intent of self-survival that would do anything 
they could to get off Death Eow without the imposition of 
the death penalty, is that a fair statement?

Mr. Gottlieb: Could we have it read, your Honor ?
The Witness: Well, I understand the question.
It is a reasonable question and it is one that com­

monly comes up, isn’t it. Wouldn’t you expect that 
people who are on Death Eow would pretend to be 
crazy in order to get off and sent to a hospital and 
so on.

Q. Yes. A. Every now and then people on Death Eow 
are malingering a mental illness in an effort to escape pen­
alty. My experience, however, is that, and it is remarkably 
uncommon and I have often wondered why, most of them 
don’t try to do it. Most of the people that I have seen 
under those conditions were not in my opinion attempting 
to do any such thing and certainly in the Euby case, if 
that is what you are implying—

Q. I did not have in mind any definite case. I am sug­
gesting to you there are those on Death Eow, when they



57a

are not spending their times writing Appellate briefs, are 
spending all of their times trying to get the assistance of a 
psychiatrist to drum np either temporary or other areas of 
mental aberrations, is that a fair statement? A. I think 
it is a terribly unfair statement, counsellor, and it is sug­
gesting for one thing that the people on Death Row are 
blithely playing games instead of suffering the torment 
of the damned and it further suggests that physicians are 
conspiring with them to outweigh the law of the land.

Q. Doctor, do I understand that your—that you pur­
port by that statement—

The Court: I am going to restrict you from any 
further cross examination.

Mr. Johnson: Nothing further.
The Court: I don’t want to restrict your whole 

cross examination, just that line.
Anything further?
Mr. Gottlieb: No questions, your Honor.
The Court: You may be excused, Doctor.
Call your next witness.
Mr. Gottlieb: Your Honor, I underestimated my 

opponents with respect to their examination and it 
seems like we are a little bit early and we do not have 
any witness presently waiting for any more testi­
mony today. I apologize to the Court for my mis­
calculation.

Mr. Johnson: May the Doctor return for a moment 
to the stand?

(The witness resumed the stand and testified fur­
ther on cross examination as follows:)

By Mr. Johnson:
Q. Doctor, in your answers you suggested there might 

be some alternative of a prolonged period of confinement 
where they run as long as 1000 days, is that what you were 
saying? A. Or more.



58a

The Court: What he said probably is it lasted 
longer than that; isn’t that what you said?

The Witness: Yes.

By Mr. Johnson:
Q. That is saying that it would probably last longer 

than 1000 days and you appreciate that generally the de­
lay, the long period of time, was occasioned by repeated ap­
peals ?

The Court: Counsel, I don’t see that that has any­
thing to do with the problem.

Mr. Johnson: Okay. May I then withdraw that 
partial question, your Honor?

The Court: Yes.

By Mr. Johnson:
Q. Doctor, you indicated a protracted confinement on 

Death Row in your examination exceeded the punishment 
for a person deprived of their citizenship and is that a cor­
rect paraphrase of what you said before? A. Yes.

Q. And is this according to some standard accepted 
criteria or have you personally established that this pro­
longed confinement is more arduous, more tortuous or is 
this some accepted standard? A. It is my opinion, sir.

Mr. Johnson: Thank you. I have nothing further.

Redirect Examination by Mr. Gottlieb:
Q. Your opinion is based upon your professional knowl­

edge and study, Doctor? A. Yes.
Mr. Gottlieb: No further questions.
The Court: You may be excused.
All right, gentlemen, we will adjourn today. 9:30 

tomorrow morning.
(Here an adjournment was taken at 3:45 o’clock 

p.m. to Tuesday, November 7, 1907, at 9:30 o’clock 
a.m.)



59a

APPENDIX B

A Brief History of Prisons and Penitentiaries

In Ms famous essay on Crime and Punishment in 1764, 
Cesare Bonesana—known as Beccaria—wrote the follow­
ing remarks on the death penalty:

In order that a punishment be just it should have only 
the degree of intensity sufficient to keep men from 
committing crimes. No one today, in contemplating 
it, would choose total and perpetual loss of his own 
freedom, no matter how profitable a crime might be. 
Therefore the intensity of the punishment of perpetual 
servitude as substitute for the death penalty possesses 
that which suffices to deter any determined soul.1

What was particularly new in Becearia’s suggestions for 
penal reform was the idea of substituting life imprisonment 
for the death penalty. One of the reasons that this was an 
innovative idea was that no sufficient prison system then 
existed for such purposes. Indeed, in the nineteenth cen­
tury there were no satisfactory alternatives to the use of 
capital punishment. As Leon Radzinowicz points out in his 
two volume study of the history of English criminal law, 
the only conceivable alternatives, transportation and im­
prisonment, simply were not workable substitutes. Al­
though called “prisons,” the existing structures for deten­
tion were simply not capable of transformation into large-

1 Cesare Beccaria, “On the Penalty of Death,” from a 1764 
treatise, Dei delitti e delle pone, as in : Capital Punishment, ed. 
Thorsten ipellin (New York, 1967), 41.



60a

scale prisons. “It was generally admitted,” Radzinowiez 
further states, “that prisons were centers of corruption, in 
need of very thorough reform.” 2 This was obviously a 
major problem for those who, influenced by Enlightenment 
thinkers such as Beccaria, wished to reform existing penal 
codes. The historian W. David Lewis put it this way: “One 
reason why rationalists did not quickly seize upon imprison­
ment as a satisfactory correctional method was a humani­
tarian consideration typified by Eden’s remark that “jail­
ers are in general a merciless race of men.” 3

Galleys and ships had been tried as means of imprison­
ment, but not so much with the idea of reforming either 
penal codes or prisoners as with the purpose of using slave 
labor. The British began using prison hulks in 1776 and 
continued the practice down to 1858.4 Frequently the 
prisoners were plagued by vermin, disease and severe flog­
gings, and along with hardened criminals were thrown the 
feeble-minded, the insane, and boys as young as two years 
old.5

In addition to simple confinement in hulks was the prac­
tice of transportation whereby prisoners were used as 
slaves in ships taking them to penal colonies. Life was ex­
cessively harsh on the transportation ships and in the col­
onies and it is little wonder that reformers did not see 
transportation as a viable alternative to capital punishment. 
For example, in 1790, 158 out of the 502 prisoners on board

2 Leon Radzinowiez, A History of English Criminal Law and Its 
Administration From 1750 (London, 1948), I, 32.

3 W. David Lewis, From Newgate to Dannemora: The Rise of the 
Penitentiary in New York, 1796-1848 (Ithaca, New York, 1965), 19.

4 Harry Elmer Barnes, The Story of Punishment; A Record of 
Man’s Inhumanity to Man (Boston, 1930), 117.

5 Barnes, 119.



61a

the ship, “Neptune” died in transit to Australia, and in 1799, 
95 on board the “Hillsborough” perished.6 Of the many men 
sent to French Guiana, 87% never left alive.7

The problem of alternatives was not restricted to Europe. 
As late as 1837 the state of North Carolina required death 
for arson, burglary, highway robbery, theft of bank notes, 
slave-stealing, burning a public building, concealing a 
slave with intent to free him, the second offense for forgery 
or “mayhem,” and being an accessory to robbery, burglary, 
arson or mayhem, as well as other offenses. One of the 
reasons for the severity of these laws is indicated by Hugo 
Bedau: “This harsh code persisted so long in North Caro­
lina partly because the state had no penitentiary and thus 
had no suitable alternative to the death penalty.” 8 In the 
colonies, a “prison” might consist of an abandoned mine (as 
in one Connecticut town) or a pit with a grating at the top 
(as in Maine).9 Such prisons were privately owned and 
the inmates were used as slave labor, much as in the Euro­
pean penal colonies.10

There were some efforts made at reform in the eighteenth 
century, but they came to little. In England, John Howard 
visited various prisons and found at some, “no allowance 
of food at all,” no water except for two inches on the 
floors of some dungeons, no sewers, and prisoners kept 
in irons.11 In prisons across Europe he discovered condi-

6 Barnes, 74.
7 Miriam Allen deFord, Stone Walls; Prisons From Fetters to 

Furloughs (Philadelphia, 1962), 26.
8 Hugo A. Bedau, “General Introduction,” The Death Penalty in 

America, ed. Hugo Bedau (Chicago, 1964), 7.
9 deFord, 19.
10 deFord, 20-21.
11 deFord, 51.



62a

tions as bad and even worse, but his reports were unable to 
get any substantive change accomplished.

In America, in Penn’s colony, there were some changes 
made around 1682, but this was a short-lived experiment 
and apparently unique in that century. One hundred years 
later the writings of Beccaria were beginning to have an 
influence in America and Dr. Benjamin Rush delivered a 
lecture in Benjamin Franklin’s house in 1787 on the need 
for building a penitentiary. A year later Dr. Bush wrote 
an essay, “Inquiry into the Justice and Policy of Punishing 
Murder by Death” in which he argued that doing so was 
both impolitic and unjust.12 If there was any general in­
terest among the colonists for replacing the death penalty 
with imprisonment, however, it had to wait upon the events 
of the Revolution and the subsequent Constitutional Con­
ventions.

The leader in penal reform in this period was the state 
of Pennsylvania which had made efforts in 1776 to substi­
tute imprisonment for various forms of corporal pimish- 
ment.13 In 1786, the death penalty was removed for rob­
bery, burglary, sodomy or buggery, and the former prac­
tices of burning a hand, cutting off the ears, nailing the 
ears to the pillory, pillorying, and whipping were elimi­
nated. In 1791 capital punishment for witchcraft was re­
pealed. The general trend established by Pennsylvania is 
described by historian Harry Elmer Barnes:

In the generation following the American Revolution, 
Pennsylvania was the first state to abolish the cruel­
ties of the English jurisprudence and to substitute im­
prisonment at hard labor for the various degrading

13Bedau, 7-8. 
13 Barnes, 105.



63a

types of corporal punishment. The Walnut Street Jail 
in 1790 was the earliest institution in America in which 
these principles were adopted.14

The gradual building up of a penitentiary system as an 
alternative to corporal and capital punishment stood in 
sharp contrast to the history of the first 150 years of 
Pennsylvania when the “whole system of criminal juris­
prudence was founded upon [the] fundamental premise of 
punishment as social revenge. . . . ” 15 Indeed, for some 
years there was a mixture of the old and the new idea, for 
it was not until 1850 that this concept of revenge began 
to change.16

The Walnut Street Jail experiment soon had more 
prisoners than it could handle and in 1803 a new county 
prison was erected in Philadelphia. It was not, however, 
until 1818 when legislation prepared the way for the Cherry 
Hill penitentiary, opened in 1829, that the first “really 
permanent achievement in the establishment of the state 
prison system” was made.17

The year 1829, then, could stand as the real beginning 
of the penitentiary system in America. Two forms of prison 
administration battled for acceptance in the years follow­
ing, the Pennsylvania system as exemplified by Cherry Hill 
where prisoners were kept in strict isolation from each 
other, and the Auburn system from New York where pris­
oners were allowed to work together, although in enforced

14 Harry Elmer Barnes, The Evolution of Penology in Pennsyl­
vania; A Study in American Social History (Montclair, New Jersey, 
1968), 2.

15 Barnes, Evolution, 6.
16 Barnes, Evolution, 7.
17 Barnes, Evolution, 117.



64a

silence. At the Auburn penitentiary flogging was used ex­
tensively and somewhat indiscriminately, epileptics and the 
insane coming in for a full share of the beatings.18 In time 
the Auburn style won the approval of the other states, and 
they began to build their own prisons, albeit without any 
idea of rehabilitation or reform of the prisoners. San Quen­
tin was established around 1850 with a code of excessively 
harsh discipline and punishment (whippings were frequent 
and the use of 1 y2 inch hoses for “shower baths” was not 
abolished until 1882),19 and its methods were not uncommon. 
Despite the lack of interest in rehabilitation, however, it 
could be said that by 1835, after “several bad starts the 
American states . . . had finally enjoyed a decade of active 
prison development. The criminal codes had quite generally 
been revised, and most of the states had substituted im­
prisonment for the traditional corporal punishments.” 20

A second wrnve of reform, beginning in the 1870’s, was to 
bring in those ideas on prison administration which we 
recognize as modern. The “Elmira system” of New York, 
established in 1889, combined the various features that 
progressive reform had been seeking for fifty years: the 
commutation system, the practice of the progressive classi­
fication of prisoners, the indeterminate sentence, parole, 
and productive and instructive labor.21

Thus it was not until almost the twentieth century that 
a completely satisfactory alternative to capital and cor­
poral punishment existed in the form of reformatories 
where prisoners could be rehabilitated. The ideal of such

1S deFord, 68.
19 deFord, 71.
20 Blake MeKelvey, American Prisons: A Study in American 

Social History Prior to 1915 (Chicago, 1936), 16.
21 Barnes, Evolution, 2.



65a

men as Beccaria, John Howard, and Benjamin Bush had 
been realized and the extent to which the “viable alterna­
tive” had arrived is best indicated by this statement from 
Hugo Bedau:

Of all the persons today in state and federal prisons, 
only about one in a thousand is under sentence of death. 
The obvious inference is that the death penalty in our 
country is an anachronism, a vestigial survivor of an 
earlier era when the possibilities of an incareerative 
and rehabilitative penology were hardly imagined.22

22 Bedau, 31.



66a

APPENDIX C

Some Further Glimpses of Capital Punishment: 
Father Dingberg and San Quentin 

Psychiatrist David G. Schmidt

Schmidt, David G., M.D.
(San Quentin Chief Psychiatrist)

As physician and psychiatrist at San Quentin, I have wit­
nessed more than 200 executions by lethal gas.

Lethal gas as a method of execution requires dropping 
cyanide pellets into sulphuric acid. Hydrogen cyanide is 
produced and when inhaled replaces the oxygen in the blood. 
In the technique of preparing the man for the execution, the 
man, the offender, is always encouraged to take deep 
breaths on going into the gas chamber.

Summary of Testimony, Dr. Schmidt, in People v. Thorn­
ton, R.T. 382-383.

Electrocution results in a very much quicker death than 
lethal gas. There is instantaneous death. I have compared 
our system of execution with that of Utah, where they have 
the firing squad, and again the firing squad—with the firing 
squad you have almost instantaneous death—quicker, much 
quicker.

Execution by lethal gas is an asphyxial death. When a 
person dies in the gas chamber, he dies by choking to death, 
by suffocation.

Executing a man, in my opinion, is an admission on our 
part that we haven’t any better solution to this problem 
of a man who has committed homicide. It has been my ex­
perience that most of the men—I have examined these men



67a

—and most of the men—and I have had my staff examine 
them thoroughly and repeatedly not just once or a dozen 
times hut hundreds of times—and most of them fall into 
the group of mental defective or borderline defective or 
psychotic; that means they are insame or mentally ill; or 
they are severely neurotic; they are driven by their primi­
tive impulses, which are so strong' that the individual has 
little or no control of their direction, and less than one- 
quarter of them belong in this sociopathic group that acts 
out and is really a criminal type.

I feel that [execution by lethal gas] is atavistic or it is 
antiquated or it is in some way uncivilized for us to execute 
a man when we don’t know what better to do with him.

Dihgberg, F ather E dward J.
(Former Death Row Roman Catholic Chaplain)

Describing what took place with a typical person awaiting 
execution, beginning from the day before, in the event of 
the man being a Catholic, I would bring him Holy Com­
munion and take care of the sacramental aspects of minis­
tration.

In addition to that there would be the matter of discuss­
ing with him perhaps things that would pertain to his 
family, things that he might want written to them, said to 
them; also of course, obviously, he would be highly on occa­
sion emotional; there would be an attempt to try and recon­
cile him to wdiat was about to happen.

I would usually see him in the morning, the day before, 
around 8 :30 or thereabouts, and perhaps stay with him for 
an hour or so, then return in the afternoon. He would be 
brought downstairs on that afternoon at 4 :00 o’clock, so I 
would stay with him until that time. After 4 :00 o’clock I 
would stay with about two hours.



68a

I would visit him again after that and stay with him 
during the night until usually 2 :00 or 3 :00 o’clock in the 
morning. I would return to see him again on the morning 
of the execution, usually about 7 :00.

I think certainly during the hours of the night there is a 
growing, an obvious growing fear; there is still the clinging, 
as the hours go on, to a forlorn hope, and you begin to 
recognize that the man is now in a great traumatic period.

He begins to become more and more needful of custody 
on the part of the death watch. He constantly moves around 
the cell, almost reminiscent of a pacing type of thing—al­
most animalistic in some respects.

The constant asking for reassurance, both in terms of the 
possibility of living beyond 10:00 o’clock in the morning, 
and then the possibility of, will he be treated perhaps with 
some mercy by Almighty God—all of these things tend to 
blend themselves in with things that seem to be totally out 
of keeping with the sense of almost losing track of what 
it is that is really happening—an attempt to somehow blind 
himself to the reality of what is going on.

Approximately at 7 :30, of course, the guards who are 
actually going to be involved in the execution, will arrive 
with the need to test all of the equipment. This is not an 
attempt to impose on the man any more hardship, but per­
force of their duties there are noises and so forth which he 
is aware of, and this is when the problem of keeping him 
in some degree of touch with reality becomes even more 
and more intense.

The fear begins to be expressed more frequently, the 
twitching of the face and all the rest that would be at­
tendant therein.

There is a telephone there. In the event the phone were 
to ring this could mean that he had gained a reprieve or



69a

commutation or whatever. When the phone rings, of course 
there is an immediate almost holding of breath with the 
expectation of hope, and then the attendant falling apart as 
the result of finding that it was a routine call.

Summary of Testimony, Father Dingberg, in People v. 
Thornton, R.T. 644-45, 647-649.

Diugberg, F ather E dward J.
(Former Death Row Roman Catholic Chaplain)

An example of how the death penalty violates the dignity 
of man, I did observe in one particular instance an indi­
vidual who I considered, when I first encountered him on 
Condemned Row—I had previously known him on the Yard 
—and that he seemed to be able to relate, seemed to be 
able to express himself adequately well in terms of his 
thoughts, his feelings; and over the period of two or three 
years I observed that this became less and less possible, 
it became more and more difficult to talk with the man.

The climax, of course, as I observed it, was the actual 
attempt on the morning of his execution to take his own 
life, which I felt had been indicated by my observations 
previously; it had been noted in the long that this had been 
also a concern of the custodial staff. That would be one 
specific case.

I recall another instance of a man with whom I had a 
very close association because he was a member of the 
Catholic faith, and there of course, obviously, I observed, 
apart from my knowledge—of which I am not privileged 
to speak—but my observations apart from my dealings with 
him as a priest per se. He, too, the day before he was to 
be executed, took his own life.

I have had occasion to visit with prisoners on Condemned 
Row at or about the time he would be advised of some ad-



70a

verse ruling by a court and that he would be awaiting a 
definite date of execution. The news would be completely 
shocking to him, with the attendant result that he would be 
in a highly nervous, anxious state; that the quality of fear 
would be very, very discernible, the almost panic type of 
asking for assurance: “Do you think that there is still the 
possibility that something might happen!” and so forth 
and so on. Which of course would not have characterized 
him in any sense the day before.

The others on the Row would have an empathy if not a 
sense of identification with the prisoner, for reasons that 
perhaps would be varying. Some would feel that some of 
the factors that were involved in his case would be in their 
own, therefore the element of hope would obviously lessen.

In general, I think they would all feel that any execution 
that would be canned out wrnuld necessarily affect them. It 
would take away from them even more pertinently that 
element of hope which they always are trying to claim.

Summary of Testimony, Father Dingberg, in People v.
Thornton, R.T. 640-642.

*  #  #  #  *

When I was at San Quentin Prison, the population gen­
erally wTas in the neighborhood of about 5000 men. Of that 
number registered, it would be that one-third would be 
Catholic, and quite obviously, I would have particular con­
tact with them, and in addition, of course, there would be 
others who would seek counselling or advice who would not 
necessarily be of the Catholic persuasion. My guess would 
be that in any given week, perhaps the chaplain would in­
terview in a given day possibly from 45 to 50 men, in a year 
about 1500 men.

T don’t know the exact number, but I would think I have 
witnessed perhaps 30 executions.



71a

My present opinion is that capital punishment as con­
ducted in California definitely offends the dignity of man, 
as I understand it, the actual taking of his life, and this, 
of course, is not the greatest indignity. It is the piecemeal 
dying, the disintegration of the personality, of the emo­
tional part of man, almost a decaying within himself of 
the soul, that precedes the actual mortal death.

My opinion is that the emphasis on the basic importance 
of the individual, the recognition within my own church as 
enunciated by Pope John, leads me to feel that there is an 
evolving concept of the value of the human personality 
which perhaps was not too clearly understood or delineated 
previously. Dingberg, id. R.T. 624-625, 626, 627-628.



72a

APPENDIX D

Assertions of Deterrence and the Circularity 
of Violence*

The notion that crime can be understood on a scientific 
basis is rather recent. It developed well after English 
Common Law concepts regarding penal sanctions had be­
come firmly established. In fact, “we must wait until Henry 
Mayhew published his London Labour and the London Poor 
in 1854, and The Criminal Prisons of London and Scenes 
from Prison Life in 1862 before we can say that any sys­
tematic effort to understand the nature of crime in that 
country (England) was underway.” (Barker 1968:229) To­
day we are faced with the task of subjecting the Common 
Law assumptions of bygone centuries regarding capital 
punishment to modern, scientific scrutiny.

Is there an empirical rationale for retaining and in­
flicting the death penalty? Can it be empirically established 
that capital punishment serves a deterrent and a protective 
function for the social systems that employ it?

In an article commissioned by the International Encyclo­
pedia of the Social Sciences, presenting a social science 
review of capital punishment “independently of clique posi­
tions” and “entirely expressive of the times,” (Johnson 
1968 :xiii).

Francis A. Allen observed that the crucial issue “whether 
capital punishment possesses a deterrent efficacy lacking 
in other less drastic, nonlethal sanctions available to the 
state when performing its obligations of public order.” 
(Allen 1968:292, see also Bedan 1970:209).

* The bibliography of works cited in this Appendix D is found 
on page 89a, infra.



73a

Comparative Deterrent Advantage & Death P enalties

The asserted justification for imposing the death penalty 
is that it is a more effective deterrent to homicide than the 
other less drastic, non-lethal sanctions available to the 
state in performing its obligations to maintain public order.

Social science evidence does not support the hypotheses, 
and negates any greater deterrent efficacy of capital pun­
ishment. Neither is there empirical support for the asser­
tion that it is a more effective deterrent than other penal 
alternatives to crime in general and to homicide in par­
ticular.

Data on the issue incudes scientific studies and 
summary statements by sociologists, criminologists and 
penologists of the highest reputation. Sutherland and 
Cressey point out, for example, that in general, “when the 
homicide rate in states which authorize the death penalty 
is compared with the homicide rate in other states, it is 
found that the former states have a homicide rate two to 
three times as great as the latter.” (Sutherland & Cressey 
1955:292) They add that:

On the average the European states which have 
abolished the death penalty have lower homicide rates 
(which generally means lower murder rates in Europe) 
than states which retain the death penalty. The Scan­
dinavian countries which have abolished the death 
penalty have homicide rates about one-half as high as 
England, which has retained the death penalty. (Suth­
erland & Cressey 1955: 294)

Indeed: “Statistical findings and case studies converge 
to disprove the claim that the death penalty has any deter­
rent value. The belief in the death penalty 'as a deterrent



74a

is repudiated by statistical studies since they consistently 
demonstrate that differences in homicide rates are in no 
way correlated with differences in the use of the death 
penalty.” (Schuessler 1952: 62)

As of 1961. eleven states had temporarily removed the 
death penalty. Sellin summarizes the known statistics on 
their respective experiences.

Arizona had no death penalty for murder from De­
cember, 1916 to December, 1918. The governor of the 
state reported to the British Select Committee on Capi­
tal Punishment in 1931 that 41 murderers were con­
victed in the two years before abolition, 46 during the 
abolition years, and 45 during the following two years.

Colorado abolished capital punishment in 1897 and 
returned to it in 1901. The average annual numbers 
of convictions for murder during the five years before 
abolition, the abolition years, and the five years fol­
lowing were, respectively, 15.4, 18, and 19. The cor­
responding figures on convictions for manslaughter 
were 2.6, 4, and 1.5.

Delaware abolished the death penalty in April, 1958, 
and reinstated it in December, 1961. The average an­
nual number of murders and non-negligent man­
slaughters wTas 22.3 during 1956-1958 and 14.3 during 
1959-1961.

Iowa had no death penalty from 1872 to 1878. Dur­
ing the seven years before abolition the average annual 
number of convictions for murder was 2.6. This figure 
rose to 8.8 during abolition and to 13.1 during the fol­
lowing seven years. The death penalty was again 
abolished in 1965.

Kansas lacked a death penalty between 1907 and 
1935. The five years before 1935 showed an annual



75a

average homicide death rate of 6.5, the next five years, 
this rate was 3.8.

Maine first tried abolition during 1876-1882, but 
the lack of data make any useful comparisons fruitless. 
Final abolition came in 1887.

Missouri abandoned the death penalty in 1917 and 
brought it back in 1919. The homicide death rate per 
100,000 population during 1911-1916 averaged 9.2 a 
year and during abolition 10.7; during 1920-1924, it 
was 11.

Tennessee abolished capital punishment for murder 
in 1915 but retained it for rape. Reinstatement of the 
punishment came in 1919. Homicide death rates are 
available beginning with the year 1918, when the rate 
was 6.9 for whites and 29.2 for the colored population. 
Except for a slight drop in 1920 in the white race, both 
rose steadily after the introduction of the death pen­
alty to 10.8 for the whites and 52.5 for the colored 
population in 1924.

Oregon had no death penalty during 1915-1920. In­
formation supplied to the British Select Committee 
on Capital Punishment in 1931 indicated that 59 “mur­
derers” were committed to the state penitentiary dur­
ing the five years before abolition and 36 during the 
abolition years.

South Dakota re-introduced the death penalty in 
1939, having abolished it in 1915. Identical average 
annual homicide death rates were reported during the 
five years before and the five years after the restora­
tion.

Washington was without the death penalty during 
1913-1919. The average annual rate of deaths due to 
homicide was 6.5 during 1908-1912. “In 1913 it was



76a

6.5, but it rose in 1914 to 10 and then gradually fell 
to 8.9, 5.5, 5.5, and 4.2 (1918). The year the death 
penalty was again introduced, the rate rose to 7.5 
but during the next five years, 1920-1924, it was 5.1, 
5.9, 5.2, 4.7, and 6.2. The average annual rate was 
6.8 during the period of abolition and 5.8 during the 
first six years after the re-introduction of the death 
penalty. (Sellin 1967: 122-4)

In short, a review by categories shows that there is no 
evidence that the abolition of the death penalty causes an 
increase in criminal homicides or that its re-introduction is 
followed by a decline. The explanations of changes in homi­
cide rates must be sought elsewhere. (Sellin 1967: 124)

Sutherland and Cressey point out that:
A method of testing the deterrent value of the death 

penalty is by comparing, in the states which have abol 
ished the death penalty the homicide rates before and 
after the abolition. The general conclusion from this 
comparison is that the states which abolished the death 
penalty had no unusual increase in the homicide rates. 
. . .  Some of these states restored the death penalty 
after a few years, on the ground that the murder rate 
had increased greatly after the abolition. The statis­
tics show, however, that the changes in homicide rates 
were almost exactly parallel in other states which 
made no changes in their laws regarding the death 
penalty. (Sutherland & Cressey 1955: 295)

Statistical comparisons before and after abolition in for­
eign jurisdictions are consistent with the experiences of 
jurisdictions in the United States. Andenaes found that in 
Sweden, after abolishment of capital punishment for in-



77a

fanticide in 1861, the infanticide rate decreased. (Along 
with other factors, Andenaes credits the decrease in the 
harshness of penalties as a factor contributing to the de­
cline in the infanticide rate. (Andenaes 1971: 541-42) 

Schnessler states that for European countries which have 
abolished capital punishment, there is no significant dif­
ference between murder rates before versus murder rates 
after its removal. (Schuessler 1952: 58-59)

Although another respected, contemporary researcher, 
Jack Gibbs, is quite critical of evidence gathered in the field, 
nevertheless, he underscores the scientific soundness of re­
search supporting abolition argument. According to him 
these conclusions:

Sophisticated studies compare the offense rate be­
fore and after the abolition of the death penalty. 
This strategy permits the reasonable assumption that 
etiological factors have not changed substantially. On 
the whole, such comparisons suggest that fluctuations 
in the capital offense rate do not reflect the abolition 
of the death penalty. (Gibbs, 1968: 517)

Gibbs also cites the findings of the 1962 United Nations 
publication, Capital Punishment: “All of the information 
available appears to confirm that such a removal of the 
death penalty has, in fact, never been followed by a notable 
rise in the incidence of the crime no longer punishable by 
death.” (Gibbs, 1968: 517)

Mark Ancel concludes that such behavior represents a 
misguided sounding and appropriation of public senti­
ments for revenge. Ancel reasons that:

. . . abatement of the penalties attached to certain 
offenses has hardly ever led to an increase in the



78a

number of such offenses. The progressive abolition 
during the nineteenth century of crimes for which 
capital punishment might be inflicted proves this con­
tention, which is borne out by criminal statistics. . . . 
What really deters the potential criminal is the un­
leashing of the machinery of justice that forces him 
to account for his actions before the appropriate court. 
The need to satisfy public opinion is often put forward 
as a justification of the severity of the penalty. This 
attitude confuses retribution with legal intimidation. 
What public opinion really wants is the appearance of 
the criminal before the court as soon as possible after 
the offense has been committed. (Ancel 1968: 380)

The comparison of neighboring states, one of which has 
capital punishment, one of which does not, holds constant 
factors associated with region of the country such as cul­
tural and subcultural variation. With respect to such com­
parisons, Sellin reports:

An inspection of the (statistics) shows. . . . that 
within each such group of continuous states (abolition­
ist and retentionist) it would be impossible to identify 
the abolitionist state, were it not designated as such . . . 
The conclusion is inevitable that the presence of the 
death penalty—in law or practice—does not influence 
homicide death rates. (Sellin 1967: 135-138)

In comparing neighboring states, both of which had 
similar cultural characteristics and both of which retained 
the death penalty, Void cross-compared northern and south­
ern counties in Iowa and Missouri. He concluded that fac­
tors other than the retention of the death penalty, accounted 
for the variation. (Void 1932)



79a

P olice Safety and Capital P unishment

Thorsten Selim lias conducted one of the most exhaus­
tive statistical analyses ever undertaken in conjunction 
with testing the validity of the frequent assumption, that 
retention of the death penalty is a significant factor in 
reducing the mortality risks of police work. His study 
refutes that argument. Some of his pertinent findings 
follow:

One argument for the retention of the death penalty 
is the contention that if it were abolished, the police 
would be more likely to be killed or injured by crimi­
nals or suspects when they are encountered. It is as­
sumed that the presence of the threat of possible exe­
cution deters persons from carrying lethal weapons 
when they engage in crime or from using them against 
the police when they are in danger of arrest. These 
opinions have been voiced on many occasions . . .

In the author’s seminar in criminology at the Uni­
versity of Pennsylvania during the academic year 
1954-1955, several studies were carried on relating to 
various aspects of capital punishment. One of these 
studies was specifically designed to secure data on the 
comparative risk of a policeman’s being injured or 
killed by a criminal or suspect using a lethal weapon. 
It was hoped that by securing data of this nature from 
cities in capital punishment states and in abolition 
states, some idea might be gained of the extent to 
which the police might be better protected in states 
with the death penalty. . . .

The claim that if data could be secured they would 
show that more police are killed in abolition states 
than in capital punishment states is unfounded. On



80a

the whole, the abolition states, as is apparent from 
the findings of this particular investigation, seem to 
have fewer killings, but the differences are small. If 
this, then, is the argument upon which the police are 
willing to rest their opposition to the abolition of capi­
tal punishment, it must be concluded that it lacks any 
factual basis.

. .. During 1961-1963 there were 140 policemen crimi­
nally killed in the United States by offenders or sus­
pects, an average of 47 per year. Nine of them were 
killed in the then abolition states—two in Michigan, 
four in Wisconsin, two in Minnesota, and one in North 
Dakota. No policeman was killed in Maine or Rhode 
Island.

In nine death penalty states bordering on the above 
states, 21 policemen were killed—four in Massachu­
setts, four in Indiana, four in Illinois, five in Ohio, three 
in Iowa, and one in Connecticut. No policeman was 
killed in New Hampshire, South Dakota, or Montana.

If we compute the risk of a policeman being killed, 
using as base the number of police in these 15 states 
according to the 1960 census, we find that the annual 
average risk for the three years was 1,312 per 10,000 
police in the abolition states and 1,328 in the bordering 
states. There was, then, no significant difference. We 
need not stress that 131 of the homicides occurred in 
death-penalty states . . .

The claim that if data could be secured they would 
show that more police are killed in abolition states 
than in capital punishment states is unfounded. On 
the whole the abolition states, as apparent from the 
findings of this particular investigation, seem to have 
fewer killings, but the differences are small. If this is,



81a

then, the argument upon which the police is willing 
to rest its opposition to the abolition of capital pun­
ishment, it must be concluded that it lacks any factual 
basis. (Sellin 1955: 138, 140, 152-153, 301 in Bedau)

Joseph Lohman, one time Sheriff of Cook County, Illi­
nois (Chicago) and Dean and Professor of Criminology at 
the University of California, Berkeley, testified in People 
v. Thornton to the effect that the death penalty was not an 
aid in securing lower risks of violence in police work:

Capital punishment does not deter or bring about a 
salutary reduction (in homicide) for police officers; it 
does not protect and secure them and all it indicates 
is that if a conclusion is to be reached, which I reached, 
it is to the effect that police are more in danger in 
capital punishment States than they are in abolition 
States. (People v. Thornton B.T. 586)

In 1968 the California Legislative Assembly Committee 
on Criminal Procedure reported that Los Angeles homicide 
and assault rates against police officers conform to the 
pattern testified to by Dean Lohman:

The State of California has . . . experienced more 
than five years of increased penalties for attacks on 
law enforcement officers.

During this same period, 1961 to 1966, the rate of 
attacks on Los Angeles policemen went from 8.4 per 
100 officers per year to 15.8, an increase of 90 percent.

After five years of increasing penalties, a Los An­
geles policeman was almost twice as likely to he at­
tacked as he was before the increases. (California 
Legislative Assembly 1968: 27-28)



82a

In a statistical analysis of police killed in action, Car- 
darelli considered the notion that capital punishment de­
terred the use of violence against law enforcers. According 
to Cardarelli:

Thorsten Selim in an earlier study compared the 
rates of police homicide for the six states which had 
no death penalty with the neighboring or bordering 
states. One of the purposes of his study was to arrive 
at some answers to the argument that the abolition of 
the death penalty adversely affects the safety of the 
police. No major differences were discovered among 
both groups and Sellin concluded:

It is obvious from an inspection of the data that 
it is impossible to conclude that the states which 
had no death penalty had thereby made the police­
man’s lot more hazardous. It is also obvious that 
the same differences observable in the general 
homicide rates of the various states were reflected 
in the rate of police killings.

In the light of the above findings, identical compari­
sons, using the present data, were made to determine 
whether the same results would be obtained. Six aboli­
tion states and the nine bordering death penalty states 
were included for comparison. Rates of death per 
1,000,000 inhabitants were computed for each state. 
In addition, we computed the rate of police killed per 
number of police employed by each state.

In comparing the rates for the abolition and the 
death penalty states, we note very little difference. 
For both groups, only one police officer was killed for 
every two million people during the three years ana-



83a

lyzed. Two of the six abolition states recorded no 
police deaths over the three year period while three of 
the nine death penalty states recorded no police deaths. 
The differences in the rates based on the population 
for each state are quite small. The range for both 
groups is very similar according to the rates per em­
ployed police, and the overall group rates are almost 
equal. (Cardarelli 1968: 451)

P rison Safety and Capital P unishment

Frequently one hears the death penalty defended as 
an indispensable measure to safeguard the lives of in­
mates and staff in penal institutions. Those who ad­
vance this argument believe that murderers who are 
sentenced to life imprisonment or receive a commuta­
tion of their death sentences will be deterred by the 
threat of execution from committing a homicide in 
prison, even though that threat did not prevent them 
from killing someone in the first place.

The validity of this argument could be ascertained 
by a study of homicides in state and federal prisons. 
Therefore, the author sent a schedule to prison admin­
istrators in the United States early in 1966 requesting 
certain information on fatal and non-fatal assaults in 
their institutions during 1965. In order to eliminate 
the common variety of petty fights that result in no 
real injuries, data were requested only on assaults in 
37 jurisdictions (10 reported that none had occurred 
such as death, hospitalization, or some other incapaci­
tation). . . .

There were no fatal assaults in the abolitionist states 
of Alaska, North Dakota, Oregon, Rhode Island, West



84a

Virginia and Wisconsin. Maine supplied no data. On 
the other hand, four such states reported a total of 
eight killings, of which two were committed by prison­
ers serving time for felony murder (Iowa) or second- 
degree murder (Michigan).

Of jurisdictions having the death penalty, 17 were 
reported free from prison homicides in 1965: Con­
necticut, Delaware, the District of Columbia, Florida, 
Kentucky, Maryland, Montana, Nevada, New Hamp­
shire, New Jersey, New Mexico, New York, Ohio, South 
Dakota, Utah, Vermont, and Wyoming. Nineteen re- 
tentionist states and the Federal system reported 53 
homicides. . . .

The hazards of life in prison have just been illus­
trated. To imagine that they can be completely re­
moved is visionary, but it is equally visionary to believe 
that the threat of the death penalty could play any role 
in reducing them. They can be lessened only by insti­
tutional management. This is a task which challenges 
the imagination and intelligence of administrators, be­
cause prisons are unnatural institutions, especially the 
maximum-security ones where the most serious offend­
ers are most likely to be found. They bring into 
enforced daily contact, within a relatively confined 
area, hundreds and sometimes many thousands of per­
sons of the same sex, usually males in early adulthood 
or early middle age, most of whom come from social 
groups in which a resort to physical violence is fa­
miliar. Their associations and relationships in prison 
at times lead to frictions ending in arguments settled 
by a physical encounter. This is, after all, not un­
known in the world outside, which provides a more 
normal milieu for a man. (Sellin 1967: 154, 158-9)



85a

See Sellin testimony in People v. Thorsten, Appendix 
A, pp. 8a-9a.

Bogan Ackman in Ms study of Homicides and assaults 
in Canadian prisons found that:

. . .  it is highly unlikely that the commutation of 
the death sentence has caused an increase in the life 
and occupational hazards for prison staff and inmates, 
and it is very difficult to believe that the hazard rates 
were lower before the policy of commutation was 
adopted by the government.

We may conclude the discussion by stating that, 
within the limitations of this study, the argument that 
the commutation of death sentences increases the life 
and occupational hazards in prison finds no empirical 
support. Not only has commutation not led to further 
violence by those whose sentences have been commuted, 
but attenuation of the threat of the death penalty re­
sulting from an unprecedented high rate of commuta­
tions has not resulted in a general increase of homicidal 
and assaultive behavior in Canadian prisons. (Ack­
man 1967: 168)

According to research conducted by Albert Morris, crimi­
nologist at Boston University,

. . .  of 121 assaults with intent to kill, committed 
in the penal institutions of twenty-seven of our states 
between 1940 and 1949 inclusive, none were committed 
by prisoners sentenced to be executed for murder 
whose sentences had been commuted to life imprison­
ment for murder; and 111 were committed by prisoners 
for other offenses . . .  It is of some interest also to



86a

note that four out of the six states which do (not) 
have capital punishment for murder were among those 
having no assaults with intention to kill during this 
ten year period. (Massachusetts 1958: 21-22)

III. Circularity or V iolence

Data on capital punishment and the imposition of vio­
lence as a sanction suggest that society’s imposition of the 
death penalty recycles violence back into the society. Nu­
merous social scientists have taken such a position.

Sutherland and Cressey acknowledge that “it is main­
tained that in punishing criminals society expresses the 
same urges which are expressed among criminals in com­
mitting crime.” (Sutherland & Cressey 1955: 301) Palmer 
states that, “Perhaps violence whether it he severe punish­
ment, or murder, or suicide, perpetuates and gives rise to 
violence.” (Palmer 1965 in Gibbs 1968: 253)

Julia Johnson mentions an historical incident illustrating 
this point, “On June 21, 1877, ten men were hanged in 
Pennsylvania for murderous conspiracy. The New York 
Herald predicted the wholesome effect of the terrible les­
son. ‘We may be certain,’ it is said editorially, ‘that the 
pitiless severity of the law will deter the most wicked from 
anything like the imitation of these crimes.’ Yet, the night 
after this large scale execution, two of the witnesses at the 
trial of these men had been murdered and wnthin two weeks 
five of the prosecutors had met the same fate.” (Johnson 
1939 in Barnes & Teeters 1959: 315)

Testimony by Dr. West in People v. Thornton raises three 
important points concerning the relationship between crimi­
nal violence and societally sanctioned violence.

Dr. West testified:



87a

“ . . . there are three ways in which I feel the exist­
ence of the death penalty in any given state or country 
has an untoward effect upon the population with re­
gard to violence among them.

The first effect is one that has "been noted by many 
others, particularly by Albert Camus, which is that 
the state, by taking life, deliberately offers an ex­
ample of violence, so that people are growing up in a 
community where from time to time lives are taken, 
are exposed to an official climate of life-taking, which 
is bound to have an untoward effect upon them.

The second proposition, and this has been put for­
ward by a number of behavioral scientists in the west­
ern world, is that the state, by offering an example of 
solving problems and thereby makes it more likely, 
in some ways that it is very difficult to measure, that 
violent solutions will be sought by such individuals.

The third, and from the point of view of my own 
experience the most specific way in which I believe the 
death penalty acts to perpetrate violence rather than 
prevent it, is through the. stimulation of certain ab­
normal people to commit crimes of violence in order 
to force the state to commit the ultimate act of vio­
lence upon them.” (Testimony by Dr. West, People v. 
Thornton, 85-86)

A major contribution of the social science—available to 
the Court as it has not been available earlier—comes from 
the laboratories which are able to conduct controlled investi­
gations. These experiments and inquiries show that vio­
lence is circular. That violent tendencies are triggered in 
normal individuals—and that the triggering is facilitated 
and reinforced, indeed—when they are provided by the



88a

punisher’s sense of rectitude, is shown and repeatedly con­
firmed in the experiments of Berkowitz and others. This 
new and important body of scientific knowledge adds one 
more change to the context of constitutional review. See:

1. Berkowitz and Rawlings, “Effects of Film Vio­
lence on Inhibition Against Subsequent Aggression,” 
Journal of Abnormal and Social Psychology 66:405- 
412 (1963)

2. Goldstein and Arms, “Effects of Observing Ath­
letic Contests on Hostility,” Sociometry 34:83-90 
(1971)

3. Berkowitz, “The Effects of Observing Violence,” 
Scientific American 210:2:35-41 (1964)

4. Berkowitz and Macaulay, “The Contagion of 
Criminal Violence,” Sociometry 34:238 (1971)

5. Bandura, “Vicarious Processes: A Case of No- 
Trial Learning,” in Berkowitz, Advances in Experi­
mental Social Psychology: Vol. II  1-55 (1965)

6. Berkowitz, “Some Aspects of Observed Agres­
sion,” Journal of Personality and Social Psychology 
2:359-369 (1965)

7. Berkowitz et al., “Film Violence and Subsequent 
Aggressive Tendencies,” Public Opinion Quarterly 
27:217-229 (1963)

8. Berkowitz and Geen, “Stimulus Qualities of the 
Target of Aggression: A Further Study,” Journal of 
Personality and Social Psychology 5:364-368 (1967)



89a

LIST OF WORKS CITED (BY AUTHOR AND YEAR) 
IN THIS APPENDIX D

Ackman, “Homicide and Assaults in Canadian Prisons,” 
in Sellin, Capital Punishment 161-168 (1967)

Allen, “Capital Punishment,” International Encyclopedia 
of the Social Sciences 2:290-294 (1968)

Ancel, “Some Thoughts on the Problem of Deterrence,” 
in Wolfgang, Crime and Culture 375-385 (1968)

Sedan, “The Death Penalty as a Deterrent; Argument and 
Evidence,” Ethics 80; 205-217 (1970)

California Legislative Assembly, Committee on Criminal 
Procedure, Deterrent Effects of Criminal Sanctions 
(1968)

Gibbs, “Crime, Punishment and Deterrence,” Southwestern 
Social Science Quarterly 48:515-530 (1968)

Johnson, A. (Honorary Editor), “Forward,” International 
Encyclopedia of the Social Sciences l:xiii (1968) 

Johnson, J., Capital Punishment 79 (1939)
Massachusetts Special Commission on the Death Penalty, 

Report and Recommendations 21-22 (1958)
Scheussler, “The Deterrent Influence of the Death Penalty,” 

Annals of the American Academy of Political and Social 
Science 284:54-62 (1952)

Sellin, Capital Punishment (1967)
Sellin, The Death Penalty (1959)
Sellin, “The Death Penalty and Police Safety,” Minutes of 

Proceedings and Evidence of the Joint Committee of the 
Senate and House of Commons on Capital Punishment 
and Corporal Punishment and Lotteries no. 2:718-728 

(1955), repr. as “Does the Death Penalty Protect Munic­
ipal Police?” in Bedau, The Death Penalty in America 
284-301 (1967)

Sutherland and Cressey, Principles of Criminology (1955) 
Void, “Can the Death Penalty Prevent Crime?” The Prison 

Journal 1932



90a

APPEND IX  E

B iographies o f Mon-Legal A uthorities

Bedau, H ugo Adam, Associate Professor of Philosophy, 
Reed College; B.A. University of Redlands, 1949; M.A. 
Harvard, 1953; Ph.D., Harvard 1961; Danforth Teaching 
Fellow, 1957-58; Carnegie Fellow in Law and Philosophy 
at Harvard Law School, 1961-62; member, American Philo­
sophical Association; member, American Society of Polit­
ical and Legal Philosophy; director, American League for 
the Abolition of Capital Punishment; author, Nomos VI: 
Justice, 1963 ; editor, The Death Penalty in America, 1964.

Ckessey, Donald R., Professor of Sociology and Crimi­
nology, University of California at Santa Barbara; consult­
ant, President’s Commission on Law Enforcement and the 
Administration of Justice, 1965-66; consultant, New York 
State Joint Legislative Commission on Crime, 1967; re­
cipient, Sutherland Award of the American Society of 
Criminology, 1967;. author, Principles of Criminology, 
Theoretical Studies in the Social Organization of Prisons, 
The Structure and Functions of Confederated Crime.

D ingberg, E dward J., Roman Catholic priest; Pastor of St. 
Isabella’s Parish, San Rafael, California; Roman Catholic 
chaplain at San Quentin Prison, California, 1948-1961.

Duffy, Clinton T., penologist and warden; secretary to 
Warden James B. Holohan, San Quentin Prison, 1929-1937; 
Warden, San Quentin Prison, 1940-1951; Secretary, Cali­
fornia Board of Prison Terms and Paroles, 1937-1940; 
member, California Adult Authority, 1952-1961; author, 
The San Quentin Story, 1950; 88 Men and 2 Women, 1963.



91a

E shelman, Byron E., clergyman; Protestant chaplain at 
San Quentin Prison, 1957-present; resident chaplain, U.S. 
Penitentiary, Alcatraz Island, 1946-49; Fellow American 
Protestant Correctional Chaplains Assn.; author, Death 
Row Chaplain, 1962.

Gibbs, J ack P., Professor of Sociology, Washington State 
University; B.A. Texas Christian University, 1950; M.A. 
Texas Christian University, 1952; Ph.D. Oregon, 1957.

L ohman, J oseph D., Criminologist, sociologist and college 
dean; Dean of the School of Criminology, University of 
California at Berkeley, 1961-present; Senior research soci­
ologist for the State of Illinois, 1934-39; Chairman, Division 
of Corrections, State of Illinois, 1949-52; Chairman, Parole 
and Pardon Board of Illinois, 1952-53; member, Research 
Advisory Council, California Department of Corrections; 
American Sociology Society; Illinois Academy of Crimi­
nology; American Prison Association.

Schuessler, K arl F., Professor of Sociology, Indiana Uni­
versity and chairman of the Department of Sociology; A.B. 
Evansville College, 1936; A.M. University of Chicago, 1939; 
Ph.D. Indiana Pfniversity, 1947; Resident Sociologist, State 
Prison, Illinois, 1938; member, American Sociology 
Society; Statistical Association of Criminology.

Sellin, T horsten, Criminologist, Professor emeritus, FTni- 
versity of Pennsylvania; Professor of Sociology since 1926; 
Fullbright lecturer, University of Cambridge, 1959-60;, 
President, International Society of Criminology, Paris, 
1956-65; President, International Penal and Penitentiary 
Foundation; past president, Eastern Sociological Society; 
member, American Philosophical Society, American Society



92a

of Criminology; consultant, Penal Code Commission of 
Sweden, British .Royal Commission on Capital Punish­
ment; member, Advisory Committee, American Law In­
stitute on Model Penal Code; Editor, Capital Punishment, 
1967.

W est, L ouis J oslyn, Psychiatrist, Professor and head of 
Department of Psychiatry, Neurology and Behaviorial 
Sciences, University of Oklahoma School of Medicine; Fel­
low, Center for Advanced Study in the Behaviorial Sci­
ences, Stanford, California, 1966-67; Major, U.S. Air Force, 
Chief of the Psychiatry Service, Lackland Air Force Base 
Hospital, San Antonio, Texas, 1952-56; National Consultant 
in Psychiatry to Surgeon General of the Air Force, 1958-63; 
Past President, Southern Professors of Psychiatry; mem­
ber, Society for Psychophysiological Research, Pavlovian 
Society, American Association for the Advancement of 
Science.



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