Friday, May 27, 2016

Common Sense And The Death Penalty

Connecticut’s Supreme Court has decided that the state cannot execute the eleven convicted killers sentenced to death awaiting punishment on Death Row.  Chief State's Attorney Kevin Kane ran up a white flag shortly after the decision had been rendered. According to a story in the Hartford Courant, Mr. Kane said the eleven Death Row inmates would be re-sentenced to life in prison without benefit of parole.

The High Court’s earlier judgment on the death penalty was a sand castle built on sand: So said Chief Justice Chase T. Rogers, who last August wrote a stinging dissent following the decision of the court. The court at that time ruled that executing a Death Row inmate "would violate the state constitutional prohibition against cruel and unusual punishment." The death penalty, the court noted, “no longer comports with contemporary standards of decency." Three justices – Rogers, Justice Carmen E. Espinosa and Justice Peter T. Zarella offered a stinging rebuke: Every step of the majority opinion, the three dissenting justices wrote, was “fundamentally flawed.”

Connecticut Commentary noted, following the abolition of the death penalty by the General Assembly, that the pending executions should not be permitted.

However, Connecticut Commentary did not argue that the retention of the death penalty would offend “contemporary standards of decency.” Only a few years before, the General Assembly, Republicans dissenting, had reinforced contemporary standards of decency when the legislature decided to retain the death penalty for the eleven Death Row inmates.

The legislature overturned the death penalty prospectively only, which amounted to a declaration that the death penalty itself did not violate contemporary standards of decency.

In fact, General Assembly abolition  was driven by political cowardice; the bill abolishing the death penalty was highly political. The General Assembly could not have abolished the death penalty in two specific cases without offending contemporary standards of decency. The murders of three women in Cheshire were at the time very fresh in the public mind. The Democrat dominated General Assembly wanted to retain the death penalty for Joshua Komisarjevsky and Steven Hayes, both of whom had recently been sentenced to death after tortuous legal proceedings.

Their crime was particularly heinous. The paroled prisoners battered Dr. William Petit with a baseball bat, tied him up in the basement of his house, restrained three women, a mother and her two daughters, upstairs, forced the mother to withdraw money from a bank, raped the mother and a daughter, tied the two daughters to beds and murdered all their victims by setting fire to the house. That multiple murder truly offended contemporary standards of decency.

Briefly, the politically timid  General Assembly should have abolished the death penalty retrospectively – to include the 11 Death Row inmates – because it is a violation of the natural law to impose a punishment upon a convicted offender AFTER the law had been repealed. The state must have a warrant for punishment, and when the warrant – the law prescribing capital punishment – has been repealed, it is indecent, illegal, unconstitutional and an offense against natural law to impose a penalty in the absence of a positive law prescribing punishment.

None of these points were urged upon the Connecticut Supreme Court by those charged with representing the interests of the prisoners on Death Row. Abolitionists had other rabbits to hunt.

The General Assembly wanted to repeal the death penalty without adopting measures that undoubtedly would have made it impossible for them to pass the abolition bill. Prospective abolition was dictated entirely by politics – and not a just consideration of the matter. Connecticut’s High Court, predictably, did not want to disappoint legislative ambitions, and so the Court produced a ruling  highly attenuated and, as three of the justices rightly said at the time, “fundamentally flawed.”

When you mix politics and jurisprudence, you get mud. The addition to the High Court of former co-chair of the General Assembly’s Judiciary Committee Andrew McDonald has further politicized and muddied a court that in the past has shown abject deference to left-wing politicians such as … well, Andrew McDonald, who, along with co-chair of the Judiciary Committee Mike Lawlor, now Connecticut’s prison czar, was principally responsible for the cowardly abolition of the death penalty in the General Assembly. Mr. McDonald should have recused himself from any Court decision affecting the death penalty. In a world governed by common sense and constitutional restraint, foxes are not generally permitted both to fashion and later rule on laws governing access to hen houses.

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