Politics and the Death Penalty

Nixon's 'War on Crime'

Neil Cameron

Having assured himself of a reasonably flattering place in western history books as the man who extricated America from Vietnam, President Nixon has now turned his attention to domestic wars. In particular it is plain that the so-called 'war on crime' is about to receive a substantial infusion of rhetoric and a certain amount of fairly sophisticated hardware.

On March 10th the President announced the introduction of a series of measures designed to deter serious criminals and to hamstring the 'permissive and softheaded judges and probation officers' who 'aid' them. These measures will include higher fines, a complete restructuring of the insanity defence, a minimum of five years' imprisonment for heroin pushers and life imprisonment — without the chance of parole — for those convicted for a second time of a drug felony. In addition the President proposes to reinstate the death penalty in a mandatory form for such crimes as kidnapping, hijacking, murder of policemen and prison guards, fire-bombing, treason and other 'war crimes'.

Although this package is ostensibly designed, rather ominously, to 'see that the American people get all the law and order they are paying for', it is difficult to see how these measures can really affect the 'crime wave'. After all, the traditional law and order concern is with so-called 'crime on the streets'. Now, while heroin and those who push and consume it undoubtedly constitute one of the major problems facing urban law enforcement agencies in America today, it can scarcely be argued with any real conviction that the other crimes mentioned have very much to do with the crimes that are bothering Middle America. Even the murder of a policeman, for which the President prescribes a mandatory death penalty, is hardly of overwhelming concern to the average citizen. Apart from the fact that most occur in the context of police interference in domestic disputes, and are thus not particularly susceptible of deterrence anyway, only 126 of the 17,630 murders in 1971 involved police victims. If the crusade for law and order is, as Nixon claims, synonymous with the reintroduction of 'goodness and decency in America', it is unlikely that his latest initiative will do much to further this thankless quest. This is due to the simple fact that the offences which he proposes to deal with are not those which provide the most direct threat to 'decency and goodness'.

It is, of course, typical that Nixon should attempt to foster these two American virtues through the medium of life imprisonment, the gas chamber and the electric chair. He has made no secret of his opposition to the Supreme Court decision of June last year which, by a majority of five to four, declared the death penalty to be unconstitutional. Indeed at a press conference held on the 29th June 1972 he declared the whole decision to be a tragic mistake and encouraged state legislatures to look for ways of getting round it. Characteristically he made no secret of the fact that he hadn't even bothered to read the majority judgements.

Nixon's present proposals on the death penalty are a conscious attempt to provide a blueprint for those states (about half) which are considering the reintroduction of some form of capital punishment. In this endeavour he may very well succeed. The Supreme Court ruling is one of its more Delphic utterances. Only two Justices rejected the death penalty completely and one of these has subsequently withdrawn slightly from his original position. The three other members of the majority found only the 'arbitrary and capricious' imposition of the supreme penalty unconstitutional. It is these three whom Nixon hopes to persuade with his mandatory penalty. Unfortunately for him three of the minority Justices indicated that even though they found the death penalty to be generally constitutional, they would not be prepared to do so were the penalty to be mandatory. Thus Nixon's final proposals are in fact a nice blend of the mandatory and the discretionary and it will be interesting to see whether they succeed in satisfying both camps. In that only two members of the Supreme Court seem to have any ideological qualms about the propriety of the gas chamber, it seems likely that the proposed legislation will be held constitutional. If this happens the states will then be free to draft their own legislation imposing the death penalty for a much wider range of crimes than those enumerated by the President.

There can be little doubt that in making these proposals Nixon is on very strong ground. Many Congressmen and a large section of the public would echo his view that 'contrary to the views of some social theorists (sic), I am convinced that the death penalty can be an effective deterrent against specific crimes'. For many, harsh punishment is synonymous with law and order. To be sure in criminal matters the federal government can only really act as a trendsetter — in that it only has control over federal crimes and those committed in Washington, D.C., — but Nixon is already assured of results. He knows full well that most states, for example, were considering legislation of the type he proposes and will thus be seen to be following his lead. More important, he is also well aware that the F.B.I. crime figures for 1972, which are due to be released in a few weeks times, will show a levelling-off in serious crime. The fact that this took place before Nixon announced his hardline is neither here nor there. Nor is the fact that the levelling-off is probably the result of a decline in property offences brought on by changing crime prevention programmes. In the fight to control such "un-American activities" as crime, social reality is scarcely a very relevant consideration. The political reality consists of Nixon the hard-liner, Nixon the leader and Nixon the man who reduced crime. Beside this all else pales into insignificance.