Friday, August 14, 2015

From Out of the Macabre Muck - UPDATE

And so, it seems, Dr. Petit won't get his revenge.  Steven Hayes and Joshua Komisarjevsky won't be killed by the decent people of the State of Connecticut for the horrific invasion of the good doctor's home, the mother raped and strangled, the girls, 11 and 17, killed in a scorching blaze after gasoline was poured on them.  (And those are just the highlights.)

Hayes and Komisarjevsky were among the 11 men left on Connecticut's death row after the legislature repealed the death penalty in 2012.  Prospectively only.  They'd have done it sooner, but put it off so Dr. Petit could have his way and Komisarjevsky could be sentenced to die.  But they did it.

But what to do with those 11?  Republicans made a point of it during legislative debate.  Peter Applebome in the Times from back then.
Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men.
“Let’s not mislead the public; let’s not mislead ourselves” said the House minority leader, Lawrence Cafero Jr., of Norwalk. “If it is the will of this chamber that this state is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.”
Well, maybe you could.  But not, as it turns out, in Connecticut.

Yesterday, by a vote of 4-3, the Connecticut Supreme Court said enough.  In State v. Santiago, litigation over whether the prospective elimination of the death penalty in Connecticut made its retroactive application unconstitutional, the court said that it did.  Near the start of the 92-page lead opinion, Justice Palmer quoted Santiago's counsel setting forth the base claim.. 
[T]he death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.
And then, Palmer gave the answer
Public Act 12-5 not only reflects this state’s longstanding aversion to carrying out executions, but also represents the seminal change in the four century long history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other important developments that have transpired over the past several years. Historians have given us new chronicles of the history and devolution of the death penalty in Connecticut. Legal scholars have provided new understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue to decline, and convicted capital felons in this state remain on death row for decades with every likelihood that they will not be executed for many years to come, if ever. Finally, it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases. For all these reasons, and in light of the apparent intent of the legislature in prospectively repealing the death penalty and this state’s failure to implement and operate a fair and functional system of capital punishment, we conclude that the state constitution no longer permits the execution of individuals sentenced to death for crimes committed prior to the enactment of P.A. 12-5.
Which is it.  The Connecticut Constitution won't allow it.

Eleven men now have their sentences commuted from execution to death by natural means.  And under particularly horrific conditions, one assumes, since that's what P.A. 12-5 set up going forward for those who might have otherwise been sentenced to be killed.

There were three dissenting opinions (here, here, and here - Connecticut's court website doesn't provide a single link to the whole thing, sorry).  Each, excoriates the majority for what might charitably be called lawlessness.  Which maybe it is and maybe not.  Depends on where you stand, I suppose.  What the court does, pretty much by definition, comports with the state law because the state law is what the court says it is.  And the justices in the majority surely thought, just as strongly as those in dissent thought otherwise, that they were doing what the law told them to.

There were also two concurrences.  The first, by Justices Norcott and McDonald, bemoans what the issue before the court does not allow them to do, and its resolution will never allow them to do (though they go ahead and do it): take on the racism that inherently infects and at least in part controls the death penalty, and implicitly the whole criminal justice system.
[W]e write separately to express our profound concerns regarding an issue of substantial public importance that will never be resolved by this court in light of the majority’s determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment. Specifically, we cannot end our state’s nearly 400 year struggle . . .  without speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state’s experience with capital charging and sentencing decisions.
In the second, Justice Eveleigh cuts to the heart of the moral issues involved, though he addresses them in legal terms.
Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today’s world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. 
A friend, who's done a lot of capital litigation over the years, told me once that "the death penalty brings out the worst in everyone."  I'm not sure he's wrong. Ending it is no panacea for our bad instincts.  The system is still racist, still driven by vengeance, still unimaginably cruel, still far more concerned with getting it done than with getting it right, still . . . .

But in this one way, by this act, Connecticut moves forward just a bit.  Out of what Norcott and McDonald call (in the words I purposely omitted from the quote above so I could quote them for the first time here) "the macabre muck of capital punishment litigation," 11 lives are saved with the stroke of a pen.  The Talmud teaches (and there's argument about it, as there is about pretty much everything the Talmud teaches) but go with this version:
[W]hoever preserves the life of a single human being . . . it is as if he had preserved an entire world.
Eleven times over, Connecticut.


And see Connecticut's own, Gideon and Norm Pattis.


  1. This is who you are celebrating for:

    1. No, it's not for them. It's for us. It's for not making us killers. It's for saying we're better than that. It's for not being the people who claim to know who deserves to live and who deserves to die. And not incidentally, it's for not infecting the memory of the dead and the loss to their family and friends with more loss to other family and friends (and yes, even vicious folk have family and friends who will mourn them).

      I celebrate any life saved - not for the person saved, but for the rest of us.

      Don't want to agree? That's fine.

    2. But you are saying who deserves to live and die. You are saying to William Petit that the men who raped and murdered his wife and daughters deserve to live. I wouldn't have the arrogance to do that.

    3. I don't have any idea whether they deserved to live. And, frankly, I don't care. I'm quite clear that I don't deserve to kill them.

      One way or another those decisions get made.

      And as I think I've said before, if Dr. Petit managed to kill them himself, I'd be deeply sympathetic and would willingly defend him. I understand the desire for vengeance. That doesn't make it something the state should engage in. Again, you're free to disagree.