And maybe it’s the way we still are.  Missouri has resumed executions, a circumstance that brightens the spotlight on the issue.  Efforts by Democratic Senator Joseph Keaveny of St. Louis  and others  in the 2013 session  to pass a resolution calling for a study of the costs of executions versus the costs of life-without-parole prison terms never stood a chance in the Republican-controlled General Assembly.  But don’t be surprised if he and others try again in 2014. The issue might arise, too, during debate on the thousand-page bill that rewrites the state’s criminal laws. 

Capital punishment has been a matter of passionate differences for as long as we have covered state government and for centuries before that.   The Missourinet has covered every execution held since they were resumed in January, 1989, seventy of them now.   At each event, protestors have had a place just outside the entrance gate to the prison at Potosi when the sentences were carried out there or, now, at the Bonne Terre prison.  Other protests are held in various communities on the night of executions.   In the years when Missouri was not executing prisoners there were visible efforts time to time calling for a resumption of capital punishment. 

As we were prowling through the papers of former Senator William E. Freeland, about whom we have written a couple of times previously, we came across a pamphlet published in 1929 called “Abolishing Capital Punishment.”  The pamphlet says it was the “closing arguments in support of House Bill 759” offered by Representative O. B. “Whittaker” of Hickory County.  We found it interesting because it is rare that remarks spoken on the House floor are taken down in their entirety and reproduced in print form.  The legislature does not maintain a Congressional Record-type of document (and the Congressional Record’s system of allowing members to “revise and extend” their remarks has always left open some question in our mind about historical accuracy).   So this publication is unusual.  

It is even more unusual because it is included in the journals and appendices of the 1929 legislative session—between the Policy of the State Highway Commission and the Biennial report of the State Geologist.  AND it is an argument made on a bill that was defeated 28-99.  Twenty-three members were absent.

It appears to be unusual, too, because the name of the Representative is misspelled on the title page.  The first page of the remarks uses only one “t” and the state manual, the Blue Book, for 1929 uses only one “t.”  The title page also identifies the bill as HB759 while the first page of the remarks identifies it as HB739.   It was 739 and it was known as the “Whitaker Bill.” 

He had moved on March 22 that the bill be made a special order of business at 2 p.m. on Wednesday, the 27^th.  The debate was so extensive that it was allowed to continue until 11 a.m. on the 28^th.  In his opening statement, as recounted in a Jefferson City newspaper, Whitaker said there had been 23 legal executions in Missouri since 1911 and at least two of the men hanged were innocent.   One of the bill’s supporters, Rep. George Heege of St. Louis, complained present capital punishment law discriminated against the poor.  “Rich men are never hanged,’ he said.   Monroe County Representative W. E. Whitecotton asked Heege if it were not true that the criminal lawyers of the state had so shaped the criminal code of Missouri to make that discrimination possible.  The newspaper account said that Heege, a lawyer, denied that had happened.  We have lost track of the number of times that argument has been spoken on various issues that we have covered all these years after the debate on HB739.

These are the words Whitaker spoke just before his bill was defeated on March 28^th, 1929.  He refers to The Speaker of the House, meaning Jones H. Parker of St. Louis.  He also refers to Reps. Gray Snyder of Lewis County and Frank E. Dubois of Texas County.  Perhaps in reading what he said we will discover why this speech occupies a unique place in the legislative record. 

Mr. Speaker:  In all the arguments yesterday against this bill there was but one that was new to me.  I confess that the argument advanced by the Gentleman from Lewis, when he said he thought it was all right to hang a few innocent people along with the guilty, because he felt sure that the God of Mercy would take that into consideration and admit them within the pearly gates, was entirely new to me.  It is the only argument I ever heard in support of capital punishment that I consider unanswerable.  The logic is faultless. It would logically follow that we ought to hang all innocent people.  But I could not help wondering, should we make the logical application of the logical argument of the logical Gentleman from Lewis, if, when he was included in the list of the innocent to be executed, he might not follow the example of the Speaker of the House and change to the other side of the question.

And the Speaker did flop, as he confessed in the preface to his argument yesterday.  I could not help wondering if that confession was not made partly because he felt pretty sure I would make it for him if he did not.  To tell the whole truth, I had three questions ready to ask him, had he not forestalled me with his confession.  I heard him make a wonderful and most convincing argument against capital punishment before a House committee. I wish you could have herd him then.  It was in every way superior ro his pitiful effort of yesterday.  It ought to have been; for then he was pleading for the right, yesterday he was pleading for the wrong.  Then his argument was supported by the records and statistics of this nation and of all nations; yesterday he was ignoring those records like a drunken engineer driving past his signals.  Then he appealed to the calm judgment and noblest sentiments of his hearers, yesterday he appealed to the lowest and basest passion of man—revenge.  In that splendid argument he related a case with which he was connected, in which an innocent man was hanged in this state.  I wish you could have had the privilege, as I have had, of hearing him on the right side of this question.

Mr. Speaker, I admired the irony of the Gentleman yesterday, when he butted the solid wall of state and federal statistics I had established, and  then backed off and shook his head like a billygoat that had by mistake butted a stone post on which a coat had been hung, and said, “You can prove anything by statistics,” which translated from billlygoat dialect to honest argument is, “I am cornered and can’t get away.”  There is not a member of this House but knows that the most relevant , competent and material evidence bearing upon this question are the very statistics I have cited.  Suppose, for instance, ten persons would take a drink from the water tank in this room and each almost instantly fell dead, and the attending physician would pronounce it poison.  That would be statistics.  I wonder if my friend would then walk over to the same container, and repeat with his charming irony, “You can prove anything by statistics,” and then step up and take a drink.  If he would I think I should feel toward him somewhat as a railroad engineer in the pioneer days of the west felt toward a drunken mounted Indian who threw his lasso over the smokestack of the speeding engine, when he watched calmly horse and rider jerked forward, hurled into the air and roll lifeless sin the dust, and turned to his fireman and said, “Well I admire his courage, but damn his judgment.” 

Mr. Speaker, I may be mistaken—I often am, but as I observed the attitude and listened to the arguments of the opposition to this bill yesterday afternoon, I was forced to the conclusion that there are about two arguments that will stand in support of capital punishment, and most of us would be (and all of us should be) ashamed to admit that we were influenced by either.  One is the base argument of revenge, which, in its final analysis, was the basis of practically all the argument that was offered in support of the death penalty; the other is that well known, but seldom mentioned, argument that the presence of the death penalty in our statutes makes it possible for the criminal lawyer to pick the pockets of his client.  Most lawyers are opposed to the abolition of capital punishment, tho there are many splendid outstanding exceptions to that rule.  We all possess to a greater or lesser degree the selfish instinct, and I do not charge it more to lawyers  than to the rest of us.  But nevertheless it is there, and holds an important place in this discussion.  The death penalty in our statutes is worth hundreds of thousands of dollars to the lawyers of this nation.  For they all know that so long as it is in the statutes the lawyer can go as deep into the pocket of his client charged with a capital offense as his conscience will permit, and most of them do not entertain much fear of their conscience seriously interfering.  And so I listened yesterday to the impassioned appeals of some of the lawyers of this House, painting some black crime, and then appealing to the low bestial brutal passion of revenge, and demanding the life of the criminal, when they knew, or ought to know, if facts are figures and truth have any place in their method of reasoning, that the death penalty would not protect the lives of others, but would endanger them.  The reason a crime wave is sweeping our country is our failure to convict the guilty; and it is just such argument as we listened to yesterday in support of the death penalty, argument that ignores all evidence and appeals to the basest passion, tha hangs the innocent and sets the guilty free.

The most painful argument I listened to yesterday was the argument from my good clerical friend from Texas county, when he undertook to justify capital punishment under the Christian system.  I know he is perfectly conscientious, and that he will vote as he thinks is right. I wish to submit to his careful consideration that the passage he read on yesterday from the Old Testament was the very identical law to which the Founder of the Christian religion referred in the greatest sermon ever preached in the history of the world when He said, “Ye have heard that  it hath been said, An eye for an eye and a tooth for a tooth, but I say unto you,” and then, with the finest logic the world has ever heard, denounced in the clearest possible language the whole system of retaliation and revenge, and liad down the constitution of a new dispensation in which the death penalty can find no place.

Mr. Speaker, when I began the scientific study of penology an criminology, about 15 years ago, had someone said to me, “Capital punishment is not a deterrent to crime,” I would have doubted, if not disputed, the statement.  Had he said to me, “Capital punishment is really an incentive to crime,” I would have laughed in his face.  And when I had finished an analysis of the first set of statistics, and found that under capital punishment crime, and especially murder, had increased and under the abolition of capital punishment had decreased, I said, “That  is a mere accident—an exception to the rule.”  When I had finished my second investigation with the result repeated, I said, “That is a mere coincidence”  But when I had finished  the analysis of all the available records of our government and of all the states that had functioned both under the operation and the abolition  of the death penalty, and found that all the general averages pointed to the same conclusion, I was forced by the simple law of scientific investigation to accept that conclusion as a truth and not as a coincidence or an accident.  But we are not satisfied to stop with that.  We know that back of such uniform results there must be a law. We know that when we abolish the death penalty in our own state, and murder decreases 10%, and when we restore the death penalty and it increases 7%, that when the highest murder ration is in states that inflict the death penalty and the lowest in the states  that have abolished it, that when there is only one murder in the states that do not inflict the death penalty to every two in the states that do inflict it, that when our neighboring state without capital punishment has only 2 murders to our 5 with it, there must be and is some great law that underlies and governs those results.  What is that law?  Why is the death penalty an incentive to crime instead of a deterrent?  In closing this argument I wish to address myself very briefly to that question.  The great criminologists of the world are now practically agreed in their answer to that question. 

Beman, in his work entitled, “Capital Punishment,” says: “The state kills its enemies.  The citizen follows the example and kills his.  Vengeance grows by what it feeds upon.  Murder and lynching and the death penalty go hand in hand…They flourish together…the death penalty does not reform, does not deter, does not protect, does not accomplish a single legitimate end of punishment.  It has been tried; it has failed; and it is doomed.  It may not wholly pass away in your day or mine.  But an enlightened public conscience will veto this decree of blood, and wrie for the state, as the state has written for its citizens, the injunction  at onec rational, scriptural, salutary and humanitarian, “Thou shalt not kill.” 

Robinson, in his work entitled, “Penology in the United States,” says, “The state itself cheapens human life when it orders its officers to kill a man.”

In short, the criminal accepts the value the state puts on human life.  If the state puts so low a value upon human life, that when it holds in its power a man disarmed, bound and helpless whom it can put behid prison bars and thus protect the public, but instead deliberately and in cold blood murders him, the criminal does the same.

But there is another psychological principle involved, which I may illustrate.  One father says to his son: “Here are the things you ought to do, and here the things you ought not to do.  As your father it is my duty to guide you aright, even to the extent of punishment, but the punishment will be for the sole purpose of your good”   Another father says to his son: “Here are the things you must do, and here are the things you must not do. If you do not obey me, I will kill you.”   Suppose each son fully believes what his father has said.  Which son will be most likely to obey?  Which father will have the greater influence over his son?  The same law that governs the family governs the state and the nation.

Mr. Speaker, in my opening argument I showed by the impartial federal and state records that no good, but great evil, is the result of capital punishment.  Those figures have not, and cannot, be questioned.  Neither can the conclusions.  You can’t stop murder with murder any more than you can put out a fire with gasoline.  The records prove the results to be the same.  If we reinstated capital punishment in this state ten years ago, many innocent persons who have been murdered during that time would be living today.  What that number is we do not with certainty know, but based upon a comparison of the number of homicides during its abolition with the number during the two years before the ten years since reinstatement, it would be more than 250. 

I ask you, how dare we continue this horrible inhuman, unchristian relic of the dark ages—cold-blooded legalized murder, when the record proves that no good, but great evil, is the result?  Add to that the contemplation that many that we thus legally murder are innocent of the crimes for which we take their lives.  Mr. Speaker, I believe, as a rule, when a man stands upon the scaffold, his limbs bound, the rope around his neck, knowing that at the next instant he will drop into eternity, and with his last breath declares his innocence, he is innocent.  I do not believe that as a rule men will knowingly die with a lie upon their lips, knowing that such a lie can avail them nothing.  Thousands have thus died on the scaffold or in the electric chair.  In many instances a mere accident of a guilty confession has proven the truth of their dying declaration.  But eternity alone holds the secret in most cases.  As an illustration I submit the following reporter’s account:

“William Heillwagner was hanged at Rock Island, Illinois in March, 1882, for the murder of his daughter-in-law, wife of his son Otto.  I aw him hanged. He had been fairly tried and well defended.  The judge was humane, upright, careful.  The twelve grave citizens that composed the jury were convicted of the prisoner’s guilt.  All the safeguards that our American judicial procedure throws about accused persons were used in this man’s behalf.  He had every delay, every opportunity, every presumption in his favor.  The trial lasted many days.  The evidence was narrowly searched.  Appeal to the higher court showed now a flaw in the proceedings.  He was hanged in the jail yard before a group, mostly newspaper men.  As he walked out on the scaffold he looked down on us and said steadily, “Gentleman, I am innocent of this crime.’  None of us believed him.  In the well-ordered process of our courts, how could innocence be found guilty of death?  Yet he told the truth.  Ten years later, a wretched man sat in a lodging house at Quincy, Illinois, and wrote a confession of the crime for which he had put William Heilwagner to death; wrote it in detail and with indubitable circumstances.  Then he left it where it could be found, and threw himself from the Quincy bridge and was drowned.  It was the old man’s son, Otto, who  had murdered his own wife and allowed an innocent old father to die for the crime.  Horror stricken we all were, when we knew that we had sent a guiltless man to the scaffold.  When it was eternally too late we all wished earnestly that we had never hunted down the poor old man.  He was convicted on a chain of circumstantial evidence that seemed without a fault.  I have never known a stronger.  Yet it was worthless, misleading, and tricked the state into a murder worse than it was seeking to avenge. 

Moments later, his bill was crushed.  But fortunately, for some reason, the text of his remarks was put into the legislative record so we might read the level of debate that is almost never heard in today’s General Assembly as well as reflect on the timeless arguments about this issue.  The death penalty remains one of the great social issues of our time and legislation ending it or even studying it is quickly brushed aside in today’s political climate. 

Rep. Whitaker was a Republican native of Weaubleau. He had been the president of three colleges, including Weaubleau College (we wonder how few people in the town today are  aware that the town had such a school).  He turned 60 the year of this speech.  He was Chairman of the House Rules Committee.  He was serving the sixth of eleven terms the people of his district chose him to serve.  He had served his first term 1913-14 in the temporary capitol constructed after the 1911 capitol fire.  His second term, 1917-18 also was in that building. But he was among the House members who were part of the first General Assembly to hold a session in the new building in 1919.  He ran unsuccessfully for Congress in 1924 after five terms in the Missouri House.  His constituents sent him back to serve from 1929-35.  After another unsuccessful bid for Congress in ’36, the people of Hickory County put him back in the Missouri House in 1938 and re-elected him in 1940.   He died May 4, 1942 in his 73^rd year, still a member of the Missouri House.