Sunday, October 03, 2010

Dan Malloy And The Death Penalty

On the question of the death penalty, Democratic gubernatorial hopeful Dan Malloy has decided to stand on principle.

His principle may be a little hard for the usual Connecticut pragmatist to discern.

The Steven Hayes trial is winding up in New Haven, and on Monday Hayes’ jury will begin deliberations. Hayes, who along with Joshua Komisarjevsky has been accused of murdering an entire family in Cheshire, with the exception of the family’s father who survived the slaughter, is a candidate for execution.

The two are accused of breaking into a house in Cheshire, beating with a baseball bat and incapacitating the father of the family, forcing the wife to withdraw money from a bank, raping the wife, raping one of the 14 year-old daughters, dousing her with gasoline and setting the house on fire. Three people died as a result of their crime spree.

Hayes more or less acknowledged his part in the murders when he agreed to plead guilty on the condition that state prosecutors would waive the death penalty in favor of life in prison. The prosecutors, perhaps more pragmatic than Malloy, said no.

“Listen,” Malloy told Hartford Courant reporter Christopher Keating, my position on the death penalty is long-lived. I prosecuted four homicide cases — had convictions in all of those cases. Sent people away for 25 to life…I'm the guy who had to sit down with families who had lost a loved one… Having said that, we know that there is precious little connection, if any, documented between the existence of the death penalty in a state and the homicide rate. We know that it has been unfairly, or at least disproportionately, applied to men and women of color. And then when you consider the difference in the race of the victim of the homicide, that becomes an even larger discrepancy… So, based on a number of factors, I would rather we lock people up for the rest of their lives and throw away the key.”

Malloy’s job as a prosecutor is not relevant to the case at hand. No one need question Malloy’s capacity for sympathy. Statisticians might fasten on Malloy’s claim that there is little documentary evidence that capital punishment affects capital crime. How could definitive evidence emerge? Is there definitive evidence showing that life in prison for capital offenders would lower the rate of capitol felonies? For such data to emerge, we would have to know of a certainty that a prospective crime had not been committed because the criminal who had not committed the crime declined to do so for fear of punishment. That data, even if it could be assembled, would be worthless because it would rely on the word of the convicted criminal – and criminals in some cases are not addicted to truth, which is why they are called “cons.”

Suppose the impossible – that it could be it could be shown life in prison terms for capital felonies did not deter capital felony – to what extent would it be justifiable to use that questionable datum to persuade others to abolish life terms for capital felonies?

The deterrent value of capital punishment is a rose herring, if not a red herring.

Other politicians, facing the risk of contumely from the state’s media, have cited their objection to capital punishment for religious reasons, but Malloy has perhaps wisely avoided such principled religious strictures.

The question whether in modern times capital punishment cases have been unfairly brought in Connecticut is easily answered. In the last 50 years, only two people have been executed in the state. Both were white men. “We know, “Malloy alleges as one of his reasons for opposing the death penalty “that it has been unfairly, or at least disproportionately, applied to men and women of color.” But not in the state over which Malloy wishes to govern as chief executive. Connecticut has avoided the disproportion that offends Malloy who, as governor, very likely will effect the abolition of capital punishment in his state. The overwhelmingly Democratic state legislature already has produced a bill abolishing capital punishment that was vetoed by the grace of Governor Jodi Rell. In a Malloy administration, the threat of capital punishment will no longer hang over the fevered bows of those who may in the future commit crimes as horrific as the Cheshire murders. Convicted capital offenders serving life sentences needn’t fear capital punishment if they manage to kill a guard or another prisoner. In a post abolition administration, such criminals would face the horror of yet another life sentence attached to their life sentence.

Indeed, the Cheshire trial has occasioned at least one recent conversion. A Democratic state legislator who steadfastly voted in favor of abolition reversed himself, his principles having collided with his pragmatism. A Quinnipiac University Poll taken in November 2007 demonstrated that 73 percent of those polled, some of whom will be voting for or against Malloy, declared that Hayes and Komisarjevsky should be executed.

Quietly, behind the scene, faithful Democrats are urging Malloy to walk back his opposition to the death penalty.


Headless Horseman said...

This is a gathering storm for Malloy. The next governor is the only thing between a legislature that is Hell-bent on keeping murderous animals provided with three hots and a cot for the remainder of their lives, and the law the way it stands.

We need to streamline the appeals process and execute these kinds of monsters before death row needs a geriatric wing added.

Fuzzy Dunlop said...

The Cheshire massacre might be evidence in and of itself of the fallacy of the deterrence myth. The death penalty was on the books when Kom and Hayes embarked on their murderous endeavor. In fact, it was only two years before-hand that Michael Ross was put to death, a well covered event amongst local media. Yet it did not deter these to maniacs. What makes anyone think it would deter other persons of a similar mind.

And although it may be impossible to prove with absolute certainty that the death penalty does not deter murder (notice I said murder, not crime... it would be completely illogical to think it deters general criminal behavior that is not punishable by death), you can get pretty damned close. Some point to Texas' high murder rate despite a prolific use of the death penalty. But there's also common sense. Will anyone make a good faith argument that there are people who, driven to murder, have stopped in their tracks because Connecticut has the death penalty? It is difficult to imagine.

My opposition to the death penalty is something of a variation of the one percent doctrine. I firmly do not believe that it deters crime. My common sense tells me that. Because of this, if there is even a one percent chance that we might put an innocent man to death, a punishment from which their is no ultimate appeal, then it should not be tolerated. And as advanced as our science has become, so long as humans are involved in the investigation and prosecution of crimes, the system will be fallible.

Imagine this... an innocent man is somehow put to death, and afterwards we learn he committed no crime. Who will tell his family we are very sorry, but he died for a good cause, because we were able to put animals like Steven Hayes to death?

Don Pesci said...


Good points.

Death penalties are abolished by legislatures, though governors may show clemency to convicted murderers if they choose, an eventuality not mentioned by Mr. Malloy when he said that a bill abolishing the death penalty would not affect cases prosecuted before the bill was written.

In Connecticut, there are pretty strong firewalls that prevent the kinds of situations you are describing, and of course only a fabulist would argue seriously that H&K have been mistakenly prosecuted.

My best guess is that abolition will become socially acceptable when a majority of the population is willing to forgo the death penalty in case in which there is no doubt of guilt. Under those circumstances, we might be able to do away with your 1% rule.

For those who are opposed to the death penalty, the question then becomes: How do we effect this social change?

The Catholic Church is doing some spadework here. The religious objection is a sound one. Few Catholic politicians in the state have put forward the religious objection to capital punishment – I suspect because it might lead them down a path they’d rather not take in the case of, say, partial birth abortion. And then too, Catholicism runs skin deep among Connecticut’s putative “Catholic” politicians.

Capital punishment very likely would not affect crimes of passion. But those who argue that punishment does not deter must be prepared to apply the principal across the board. You were toying with this point in your remarks. Life in prison may not deter murderers as well; are we prepared to argue that therefore life in prison terms should be abolished? Thoughtful potential murderers will be deterred by punishment. H&K, it seems to me, were caught in the bubble of their imaginations. Neither of them were, shall we say, were directed by the notion that human action has consequences – one of them being this: If you murder, you risk execution.

Fuzzy Dunlop said...

Your comment regarding a life sentence brings up an interesting issue... on what theory do we operate our penal system? I would posit that a life sentence is justified not just for deterrence value (clearly would-be murderers must know there is SOME consequence... I do not mean to say murder cannot be deterred to a certain extent), but also for incapacitation. Steven Hayes has clearly demonstrated that he must be removed from society, and life sentence would serve this purpose.

I'm somewhat of a utilitarian when it comes to criminal justice, which I suppose informs my stance on the death penalty. Interestingly, I feel that pedophiles and sex offenders should in many cases receive life sentences; rehabilitation for a sexual preference (and that's what pedophilia fundamentally is) is not possible... these people need to be incapacitated. Once you touch a kid, you just lose your society privileges, period. At the same time, I can imagine a situation where a person kills another in the heat of passion, and it is not necessary to remove them from society.

I think a utilitarian approach is a more Christian approach as well. Recall Matthew 7:1.. "Judge not, lest ye be judged." It is not for us to judge others... thus, the only justification for is utilitarian... as Christians, retributive theories of punishment ought not be part of our vocabulary. Better to wait and let St. Peter sort things out. There are no angels among us, and punishment meted out by man must be done solely for the benefit of society.

Don Pesci said...


My wife and I today visited three Connecticut wineries. They give you “passports” to all the wineries on the Connecticut wine trail, which are stamped whenever you visit one. If you visit 18 wineries within a certain time frame, your passport is pulled from a hat (bottle?) and you end up wining a trip to Spain. We are getting close to the termination date, and so today we found ourselves at three wineries. During a wine tasting, you can be expected to taste 8-10 different wines. Doing the math, I figure I had about 23 glasses (about a third full. Wine, as you know, is the nectar of the gods. I am in such a blissful state now that I find it nearly impossible to disagree with so articulate a commentator as you. And you carry the day by default. I am at peace with all humankind. I do not expect this mood to pass off until early tomorrow morning. However, I would caution you that arranging justice to benefit society occasionally leads to the gulag. It’s always best to keep one eye cocked in the direction of that individual, whoever he may be, who keeps society honest by thumbing his nose at it.

On the matter of capital punishment, I find Dostoyevsky persuasive. He was an Orthodox Christian who knew a good deal about it.

mccommas said...

My feeling on deterrence is it just does not matter so there is not point debating it. We execute these killers as a punishment. What they did was so bad that they have forfeited their life as a punishment. If there is any deterrence, than that is just gravy.

And fear of the law generally is absolutely a deterrent. I know it deters me from breaking even minor laws.

Fuzzy, I don’t think that deterrence argument is the best one you can make. One thing that gives me serious pause on the death penalty is the family of the murderer. I think they are victims too since in all probability they had nothing to do directly or indirectly with the crime their loved one committed. Abolishing the Death Penalty might be an act of mercy for them though the families of the victim might disagree.

I can’t get the look of horror the mother of that man that killed his pregnant wife (lacy wasn't it?) in Cally as she left a hearing. I feel very sorry for her. No one should have to go through what she is right now.

I find Malloy’s position weak. America executes darn few women so why does he throw them in there? Further we don’t have a lot of Blacks on Death Row so there goes the rest of his argument. I know of one (Webb) and I think there is one or two more. In fact the lawyer of that Cop Killer (Johnson) filed an appeal that said the Connecticut’s Death Penalty disproportionally goes after Caucasians!

Johnson eventually beat the death penalty rap which I am still very upset over. Both of the Johnson boys should have been executed.

I think that if you are convicted of killing a cop than you should go to the head of the line on Death Row.

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