As governor, Malloy will sign a death penalty abolition bill earlier passed by the General Assembly, which has been dominated these many years by the Democratic Party. The bill abolishing the death penalty -- vetoed by Gov. Jodi Rell, who asserted that the death penalty was appropriate in some cases -- passed the legislature over heated Republican opposition during the assembly’s last session. Incumbent Democrats who signed off on the death penalty abolition bill likely do not expect their numbers in the legislature to be so depleted in the November elections as to make it impossible for a Democratic dominated assembly to pass the bill with Governor Malloy at the helm.
In an editorial printed in the Courant three weeks before Election Day, “Repeal The Death Penalty,” the paper asserts that the trials of Steven Hayes and Joshua Komisarjevsky should not be an impediment to the abolition legislation the paper approves.
The “horrific” Cheshire murder trials likely will but should not “have a definitive impact on whether death by lethal injection continues to be a punishment option in this state,” according to the editorial. “We hope that it does not — that lawmakers and the next governor can summon the courage to substitute life in prison without parole as the ultimate penalty for capital crimes.”
The paper notes that a bill abolishing the death penalty would not affect capital felony prisoners convicted before the bill had been passed. An ex post facto rule of law, according to which laws cannot be retroactivly applied to people whose actions were legal before laws prohibiting them were passed, still is observed broadly in the United States by most lawyers and jurists willing to bind themselves with adamantine Constitutional strictures. Attorney General Richard Blumenthal appears to have flouted that rule, binding on all lesser mortals, in the Pricilla Dickman case.
The editorial notes, “In last Tuesday's gubernatorial debate, Democrat Dan Malloy said he would, if elected, sign a bill that repeals the death penalty, but only going forward. That is, repeal would not apply to death sentences that stem from legal proceedings already underway.”
Abolition of the death penalty in Connecticut is being driven forward almost wholey by moral considerations. The Catholic Church and other religious institutions, as well as a secular media that considers execution for capital crimes to be morally repugnant, are in the vanguard of the abolition movement. No one seriously pretends that in the modern period criminals executed in Connecticut have been unjustly punished. The claim that capital felony punishment had been unjustly visited upon Michael Ross, one of two offenders executed in the state in the last 50 years, was always absurd.
In states like Texas, of course, things are different. Capital punishment opponents who often employ the canard that an accused might be unjustly convicted in Connecticut generally point to cases outside the state. No one, least of all the Courant, mentions that in Texas the governor is permitted to commute a capital felony sentence to life in prison if files a timely petition to the Texas Board of Pardons and Paroles that is signed by the governor.
The Courant has not yet asked Malloy whether as governor he would seek a like authority from a Democratic dominated legislature that had sent him a death penalty abolition bill he has promised to sign.
It is morally deracinated to seek abolition of the death penalty on moral grounds without also seeking some way to avert capital punishment in cases in which it has been imposed. It is impossible to conceive of a moral opposition to, say, slavery that would emancipate no slave currently held in bondage under a, emancipation declaration. After the legislature has found a way to abolish the death penalty, it will find a way to emancipate those convicted of capital punishment under a discarded law, perhaps by giving the new Democratic governor an commutation option like one that may be invoked by the governor of Texas.
In the meantime, Hayes, awaiting his just punishment under a law that will be abolished by a Democratic legislature allied with a Democratic governor, is preparing for his penalty phase trial.
Having been convicted of murdering a mother and two daughters in a fashion that even the most conscience stricken editors and columnists at the Courant consider heinous and depraved, Hayes’ lawyer, borrowing an leaf from Attorney General Blumenthal’s playbook, is preparing to argue to the jury that convicted his client that the capital felony charge should be overthrown because it would be too expensive to carry the cumbersome capital felony process through to its just end.
In May, 1990, arguing against Bill H.B. 5542, which when passed made death penalty convictions less burdensome for prosecutors by requiring courts to issue a death penalty when aggravating factors outweighed mitigating factors, Blumenthal advised:
“The death penalty not only lacks any deterrent affect. It is also been proven to be more expensive to impose than any kind of prison term. It is more expensive to house and continue the convictions, maintain the convictions of those who have been convicted and sentenced to death. That is a fact that has been proven again, and again, throughout the country. And it is the reason along with all the others, that most countries in Western Europe do not have the death penalty. Most New England States do not have it. We are one of the few in the region that does.
“So I urge my fellow members in this Circle, for all those reasons, to reject this amendment. Once again, we have a measure, a proposed statute with surface appeal, seductive on its face. But in reality it will not accomplish the purposes that its proponents say it will.”
The Courant also believes that it is too expensive in Connecticut to execute Hayes and Komisarjevsy: “As we have for decades, The Courant continues to oppose the death penalty because it has been unworkable and is expensive, unfair, risky and morally compromising.”
Especially, morally compromising: “Finally, the death penalty puts the state in a morally compromised position. As horrible as some crimes are and as evil as many of the perpetrators may be, the state should not be in their same business, the business of death.”
One supposes it would compromise the morals of the Courant to endorse as governor a candidate who approves the death penalty. That would be Republican candidate Tom Folly. The flip-flopable Blumenthal, by reversing himself on the death penalty -- as a senatorial candidate, he now approves it – has introduced a new wrinkle into Courant editorial processing: How can the paper justify itself morally by supporting both Malloy and Blumenthal?
Where there’s a will, there’s a way. And the Courant is adept at finding ways out of moral swamps.