Tuesday, April 07, 2009

Retain the Death Penalty for Special Cases

Lets take this one step by step.

In a recent editorial, the Hartford Courant inveighs against Connecticut’s death penalty law.

“A legislative committee,” the paper advises, “has taken a brave step toward abolishing Connecticut's death penalty, a law that is all but unworkable, not to mention expensive, unfair and risky."

The bill abolishing the death penalty was brought forward by the same folk who recently sought unsuccessfully to deprive Catholic bishops of their responsibility, in an apostolic structure, of determining the finances of their organization. The Catholic Church also opposes the death penalty, for legitimate religious reasons.

Now, why does the paper think that bringing forth such a bill is “brave?” It may be right, according to the revised religious precepts of the Catholic Church, but why is it brave? Is the opposition to the death penalty in Connecticut so fierce and unrelenting that those who have petitioned for its abolition are in some sense threatened? The Courant does not say.

And why is the death penalty law – in Connecticut – unworkable? What does it mean to say that the law is unworkable? And if it is unworkable – impossible to execute? – what is the point of the editorial arguing for its abolition? Surely, the Courant objects to the law because it has worked -- as it happens, twice -- in the last fifty years.

Why is the execution of the death penalty in Connecticut expensive? Would opponents of the death penalty put their objections back in their scabbards if the death penalty in Connecticut were cheap and more workable than it appears to be?

Not likely.

Is the death penalty, as it has been enacted in Connecticut, unfair? When we descend from flighty theoretical arguments to the facts on the ground, has the imposition of the death penalty in Connecticut been “unfair” or “unjust” or “risky?


“By unfair,” the editorial continues, “we refer to the lopsided application of such laws nationwide. Minorities make up more than half of death row inmates.”

But very nearly the reverse is true in Connecticut. There have been only two executions in the state within the past half century. Neither of the persons executed were members of the minority.

“Minorities make up more than half of death row inmates.”

Majorities make up far more than half of the Judiciary Committee. Are the bills produced by that committee inherently unjust because minorities are underrepresented?

“By risky, we mean that 130 death row inmates have been exonerated around the nation in the past decade. There is evidence that others who were executed might have been innocent.”

But not in Connecticut.

“By expensive, we refer to the cost of the endless appeals that make Connecticut's law practically unworkable.”

One of the reasons it is expensive to carry out the death penalty in Connecticut is that the state has imposed a system that makes it nearly impossible to execute an innocent man or woman.

Michael Ross, the last person to be executed under Connecticut’s liberal death penalty law, enjoyed twelve or more years of litigation before justice was served upon him. An extraordinary intervention by a partisan judge, Robert Chatigny, was instrumental in postponing Ross’ imminent execution the day before he was to be executed. That intervention – a farcical display in the course of which Judge Chatigny threatened to pull the law license of Ross’ council if he did not persuade Ross to permit yet another fruitless hearing – added to the expense of Ross’ ordeal. No one at the time, least of all the Courant, complained of the unnecessary expense.

“Finally, the death penalty puts the state in the morally compromising position of committing the act for which it is punishing someone.”

What does this mean? Would the Courant object to imprisonment imposed upon kidnappers because the punishment in that case would be similar to the crime? Should courts be permitted to impose fines on embezzlers?

“Everyone is entitled to due process, even convicted killers. Michael Ross, the only death row inmate to be executed in Connecticut in decades, asked to die. Yet his case was made only after it was laid out again and again in agonizing detail that must have been horribly hard on the families of his victims.

“State Sen. Mary Anne Handley said it best: ‘The death penalty is neither swift nor certain. It may even be certain that it's not going to happen.’"

Well, it most certainly would not happen in unusually compelling circumstances, if Ms. Handley has her way. What just punishment would Handley suggest in the case of an incarcerated capital felon sentenced to life in prison who murders a guard or another prisoner in a riot? Would a second a fruitless life term in prison satisfy Ms. Handley’s yearning for justice? And would she object to life in prison sentences for juvenile gang members convicted of capital felonies if it could be shown that a life sentence without parole were prohibitively expensive?

“It is heart-rending to hear the testimony of Dr. William Petit Jr., whose wife and daughters were tormented and murdered in a 2007 home invasion. He favors the death penalty for the killers and views anything less as an injustice. It is not difficult to sympathize with his plight.”

But apparently there is limit to all things, including sympathy, and on the point of capital punishment, the ideologues at the Courant are quite out of sympathy at the moment. An ideologue may be defined as someone who refuse, usually on religious or ideological grounds, to make a distinction in the fitness of punishment apportioned to a) those who commit planned multiple murderers and b) those sentence to life in prison for having committed lesser crimes.

“But the state has an obligation to separate justice from revenge.”

Indeed, it does. And those quick to pull moral triggers also have an obligation to make distinctions between justice and revenge. Such fine distinctions are not always appreciated by ideologues who wish to see the death penalty abolished, no matter the circumstances surrounding the crime.

Michael Ross coldly and brutally strangled and murdered his eight victims, raping most of them. Two of the last people he murdered were fourteen year old girls. Ross picked them up in his car, raped and strangled one, while the other watched, and then raped and strangled the second, disposing of her body near one of those quaint New England field stone fences that wind through pastureland returned to the forest.

His was as nearly perfect an act of vengeance as can be imagined.

Ross, on the other hand, was given the benefit of a trial, during which he was found guilty by jury number one. He was sentenced to death in a separate legal proceeding by a second jury. Numerous appeals were filed on his behalf, with his concurrence, by a court appointed public defender. Twelve expensive years elapsed between the time Ross murdered the two fourteen year old girls and his execution. As the time for his execution grew near, Ross gave up further appeals, instructing his lawyers that he no longer wished to put the family members of his victims through further agony. Its was the very same people who object to the interminable duration of death penalty cases that then proceeded to further prolong Ross’ just punishment.

Whatever this protracted litigatory process may be – it cannot truthfully be described as revenge. Juries, far removed from emotionally determinants, are not vengeful: They are deliberative.

“Changes in the law approved by the Judiciary Committee and headed for a House vote would bring swifter closure for victims by consigning those convicted of capital crimes to life in prison without parole. Locking up a killer for the rest of his days, where he can ponder his crime and his fate, seems a more potent punishment than putting him out of his misery."


This special pleading is at least as odd as that of the patricide who having murdered both his parent proceeds to throw himself on the mercy of the court as an orphan. We are first told that a seemingly endless process of adjudication is necessary to assure that justice is served; next we are told, by those very people who have insisted on the endless process, that because the process is long, the punishment must be waived in favor of a punishment that is longer and may be, they insist, more cruel than the abolished punishment.

But life in prison without parole is subject to the same vagaries as capital punishment, and as the Courant has not proposed to do away with habeas corpus – over Sen. Chris Dodd’s vehement objections – the punishment promises to be every bit as expensive, if not more so, than the death penalty.

“Gov. M. Jodi Rell has restated her belief in the death penalty, foreshadowing a veto should the changes go through. She should take her cues from New Mexico Gov. Bill Richardson. Last month, he signed a law repealing his state's death penalty even though he personally supports it. He cited the error-prone judicial system, noting the death row inmates who have been exonerated in the past decade, including four in New Mexico.

“The state's goal should be to keep society safe. It can accomplish that without the expectation of executions that rarely if ever take place. “

This argument – that capital punishment ought to be abolished because it is rare – is a prime example of the circular logic of the born ideologue. It is humane and just that capital punishment should be rare. We do not wish to visit capital punishment on those who, to stretch for an absurd example, oppose capital punishment. Broadening the punishment in this way would expand it and make it less rare, at which point, one supposes, the editorial board of the Courant would quickly abandon the notion that a rare imposition of the punishment is inherently unjust.

The ideologue perversely refuses to argue from specific cases. The Courant has not shown that any of the rare – two -- capital executions in Connecticut over the past half century are unjust, because they were not unjust. Neither were they acts of vengeance.

The paper constructs its brittle arguments for the abolition of the death penalty by referring to cases outside Connecticut. It points to possible unjust applications of the death penalty in New Mexico. It might as well have pointed to Italy in the 15th century, where the fiery religious preacher Savonarola went up in a puff of smoke, mostly for having irritated rich Italian bankers like the Medici, or Soviet Russia in the 20th, a state that executed priests for bringing the forbidden word to atheist ideologues.

We know full well that all punishments may be abused; those abuses ought to be abolished. But the truth of the matter is that the death penalty in Connecticut has not been applied abusively or thoughtlessly or vengefully. It has been applied rarely – and justly.
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