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.