Capital Punishment Reconsidered

Norm Pattis, a well-known Connecticut criminal attorney, is reconsidering capital punishment, the death penalty abolished by the General Assembly in 2012.

The death penalty was “broken” said the abolitionists, by which they meant it could not be executed. As a practical matter, they were right.

Capital punishment was so hedged about with seemingly endless processes that it took the state of Connecticut nearly twenty years to put to death mass murderer Michael Ross, who had raped and strangled most of his eight victims, the last two fourteen year-old girls. Had not Mr. Ross pulled the plug on his own appeals process, he might still be with us. Connecticut’s capital punishment law was “broken” because the sometimes pointless navigation through all the legal breakwaters made the execution of the sentence nearly impossible. But instead of mending it – retaining the punishment for multiple murder crimes or the murder of public safety officers for example -- the General Assembly ended it.

Mike Lawlor, later appointed by Dannel Malloy as the Governor’s undersecretary for criminal justice policy and planning and for many years the co-chairman of the state’s Judiciary Committee, was an early proponent of abolition. The General Assembly abolished capital punishment prospectively – which means that the eleven death row inmates still awaiting punishment will be executed, after their appeals processes run out, in the absence of a law prescribing the death penalty for the crimes they had committed.

Asked on WNPR’s program, Where We Live, whether he thought prospective repeal was advisable, Mr. Lawlor, artfullydodging the bullet, said that Connecticut was not alone in repealing the death penalty prospectively: “Of the six states that have repealed the death penalty in the last few years, all of them did it prospectively. There's nothing unique to Connecticut."

It is hardly reassuring to note that six states other than Connecticut had violated a rule of law that informs every law ever written. Nulla poena sine lege – “Where there is no law, there is no transgression” – is a part of the Natural Law that informs all laws, including all statutory and constitutional law.  When Samuel Johnson was reporting on debates in the House of Commons, he offered this gloss on the doctrine: “That where there is no law there is no transgression, is a maxim not only established by universal consent, but in itself evident and undeniable; and it is, Sir, surely no less certain that where there is no transgression, there can be no punishment.”

Punishments meted out in the absence of laws prescribing such punishments is the hallmark of tyrants who wink at injustice, including King John of  England, who was forced to sign the Magna Carta by the victims of his lawless rule. The six states that abolished capital punishment prospectively are hardly templates of proper justice.

It was not a regard for justice but rather legislative cowardice that persuaded members of Connecticut’s General Assembly to retain a punishment abhorrent to them for current murders on death row after they had abolished the law prescribing capital punishment for future murderers. Connecticut’s cowardly legislators knew they could not abolish capital punishment for Steve Hayes and Joshua Komisarjevsky – two paroled prisoners with long rap sheets convicted by juries of their peers of having cruelly murdered three women in Cheshire, a mother and her two young daughters – without stirring up a hornet’s nest of opposition. And so, by abolishing the law prospectively, anti-death penalty legislators violated every argument they put forward as justifying the abolition of the death penalty. And they also violated a cardinal rule of justice – no, THE cardinal rule of justice: To administer a punishment in the absence of a law warranting the punishment is the very essence of lawless tyranny.

Death penalty opponents in 2012 asserted that the death penalty should be abolished because it was “cruel and unusual punishment” and a form of “judicial murder.” And so they abolished the law but retained the punishment in the case of the eleven men awaiting their cruel and unusual punishment on death row. But to punish a man with death in the absence of a law prescribing such punishment is quite literally – judicial murder. And, please notice, the punishment is irrevocable, precisely the argument used by death penalty abolitionists to abolish the law.

“Having voided the death penalty,” Connecticut Commentary noted on the day the abolition bill passed, “what possible moral reason can be advanced to justify what should rightly be regarded as murder, plain and simple? No possible justification can be advanced that does not do violence both to the law and the moral sense of just men and women. The death penalty abolition bill as proposed – with its prospective feature – is political Babbitry of the worst kind, a fainthearted retreat from legislative responsibility. The Democratic General Assembly, having messed its pants with this ill proposed bill, will now expect the courts to wash its diapers and apply through judicial edict the retroactive feature it was too politically cowardly to attach to it.

Mr. Pattis – who thinks, sometimes dangerously, outside the box -- was brought to a reconsideration of the death penalty by a reading of Edward Wilson's "Social Conquest of the Earth" and studious reflection on press reports concerning bombing terrorist Dzhokhar Tsarnaev's jury selection in Boston.  Mr. Pattis remains unconvinced that life in prison without possibility of parole is less torturous than the death penalty, nor is he persuaded that “lethal injection is by definition cruel and unusual punishment.”

One of Mr. Wilson’s chief concerns is the social weal and collective adaptation. Mr. Pattis writes, “What do bombers contribute to the social weal? I'm hard-pressed to think of anything, although I know that Tsarnaev is far from the sum of his worst moments.?? In the war known simply as the struggle to survive, does there come a time in which the survivors can say, simply, enough?”

The fatality of capital punishment – jury determinations may be wrong – still provides Mr. Pattis with reason enough to oppose the practice – but…

“But—and the fact that the word "but" appears at all in this context surprises—I'm hard-pressed to agonize over the destruction of those who seek to destroy me and what I value. A world of perpetual love and peace is a theologian's dream, not mine. Am I condoning tinkering with the machinery of death? Not at all. I'm merely recognizing that we've always done so, and probably always will. The marvel is that we paralyze ourselves in agonizing over it.”