Ethel and Julius Rosenberg get the death penalty for a crime that no one seems sure they committed.
The jury has spoken. The Appellate Court has spoken; the opinion of Judge Frank began, “Since two of the defendants must be put to death if the judgment stands, it goes without saying that we have scrutinized the record with extraordinary care.”
In view of all this, why the fuss about the Rosenbergs? The answer lies in the penalty, the sentence of death. Julius and Ethel Rosenberg are lodged in Sing Sing awaiting execution. As the trial court said, it is hard to conceive of a crime which, as events have transpired, could have more vicious consequences. Yet we cannot forget that Klaus Fuchs, the scientist and chief conspirator in this whole business, was tried in England and sentenced to only fourteen years in jail, and that in the Canadian spy trials the sentences were relatively light. We may try, but we cannot forget the two young Rosenberg children.
So far as I know, there is no precedent for a death penalty in a case like this. We cannot help feeling that giving information to an ally (we must bear in mind, however, that the Rosenbergs continued to give information when Russia was no longer an ally and was in a sense an enemy) is not so serious as giving information to the enemy and that if this is a lesser crime the penalty ought to be less. These considerations apparently moved Circuit Judge Frank, who felt constrained to hold that the Appellate Court had no power to reduce the sentence. Judge Frank said:
In support of that contention [that the penalty should be reduced] they assert the following: That they did not act from venal or pecuniary motives; except for this conviction, their records as citizens and parents are unblemished; at the most, out of idealistic motives they gave secret information to Soviet Russia when it was our war-time ally; for this breach they are sentenced to die, while those who, according to the government, were their confederates, at least equally implicated in wartime espionage — Harry Gold, Klaus Fuchs, Elizabeth Bentley, and the Greenglasses — get off with far lighter sentences or go free altogether. Finally, they argue, the death sentence is unprecedented. In a case like this: No civil court has ever imposed this penalty in an espionage case, and it has been imposed by such a court in two treason cases only.
There is a suggestion in connection with the death penalty that the Supreme Court might “well think it desirable to review that aspect of our decision in the case.”