Process Nullification And The Death Penalty

Juries, occasionally rising above the deadening process of the law, will engage in what lawyers call jury nullification. Jury nullification involves putting aside process in favor of justice. Instead of ruling as a judge or the law might wish, a jury occasionally will throw process to the wind and bring in a surprising verdict.

Death penalty opponents in Connecticut, some of whom are leaders in the General Assembly and the judicial system, have for the past few decades been practicing what might be called capital felony process nullification.

The idea is effectively to vacate jury findings by absurdly extending the legal process in death penalty cases. Such jurists and legislators, reasoning that the death penalty is an abomination – even in cases in which it may be justly applied, such as in multiple murder cases or cases in which a capital felon already sentenced to life in prison takes a life in prison or in terrorist cases or in cases in which the crime is especially heinous – encourage and permit an endless process of litigation that fairly assures the capital felon will die of old age in his prison bed before justice is visited upon him. In so doing, a fetish is made of process and just sentences are nullified.

Additionally, the cost of capital felony executions are artificially increased so that those opposing capital punishment may argue with some degree of plausibility both that capital felony executions are prohibitively expensive and also that they needlessly prolong the suffering of the family members of the victims of capital punishment. This last objection is on a par with the absurd defense of one who murders his mother and father and then throws himself on the mercy of the court as an orphan. In Connecticut and across the nation, common sense still holds to the view that murderers are primarily responsible for murder and that in certain cases capital punishment is a condign and just punishment.

Apart from a direct reference to a specific case, most judgments concerning capital punishment are irresponsibly useless. In the case of Joshua Komisarjevsky, recently found guilty by a jury of his peers of capital felony in the murders of three women in Cheshire, opponents of capital punishment have marshaled a series of pointless generic arguments.

It may be true in some cases that capital punishment has been unjustly applied, but this is not true in any of the capital cases awaiting final disposition in Connecticut. And it is very difficult to argue plausibly that the two convicted criminals in the Cheshire murders are not guilty of the crimes of which they have been accused because a) both have admitted to the murders, and b) both were found guilty of the crimes after just trials that bear no relation at all to acts of vengeance.

In fact, nearly all the generic arguments marshaled against capital punishment – that capital punishment is inherently racist; that it is judicial murder; that it cannot be applied with a sufficient degree of certainty; that the penalty should be abolished because it is not applied in every instance in which it may be appropriate – fall to the ground when applied to the Cheshire murders.

As generic objections are brought before the court of public opinion in specific cases, the justice of the objections themselves may be measured and affirmed or rejected. And that is why, in the Komisarjevsky case, those opposing capital punishment resort to all-purpose objections: Capital punishment is offensive to soon to be normative views of morality; it creates emotional hardships for family members who must run the knout of seemingly endless appeals; it is expensive; it is a fraud.

In retreat from specificity, anti-capital punishment opponents fall back upon what one might call the argument from inevitability: History is marching against capital punishment, and soon it will be overthrown here in the benighted United States. Why not get rid of it in Connecticut, recently the scene of two separate mass murders, now?

The argument from inevitability, however, does not have quite the force of the murders committed by Mr. Komisarjevsky and Mr. Hayes, which is why when average, non-vengeful people in Connecticut are asked whether capital punishment should be retained in the Cheshire murder case they respond in numbers too large to ignore that it should.