Death Penalty Aftershocks

The repeal of the death penalty has produced some aftershocks. Of course, the real aftershocks will arrive after the next heinous murder, though it should be said that the multiple murders of Steven Hayes and Joshua Komisarjevsky have set a high bar.

These two worthies beat a husband with a baseball bat, tied him in the cellar of his house, forced his wife to draw out thousands of dollars from a bank, raped her, raped one of the daughters, tied both daughters to their beds, set fire to both, sprinkled the house with gasoline and murdered all inside but Dr. William Petit, who managed to escape and afterward demand the death penalty for Mr. Hayes and Mr. Komisarjevsky, readily granted to him by two separate juries. In Connecticut, death penalty cases require both a jury trial and a death penalty hearing.

Somewhat like Ishmael of Moby Dick fame, Mr. Petit was a lone survivor, a rather chatty one, determined to seek justice for his wrecked Pequod. Anti-death penalty proponents found it difficult to empathize with Dr. Pettis’ thirst for justice, but they could not do other than to sympathize with his plight.

State Senator Edith Prague, long an opponent of the death penalty, sympathized enough to change her consistent vote against the death penalty, frustrating an earlier attempt to abolish it. Mrs. Prague emerged from a private conversation with Mr. Petit and pronounced the following doom upon Joshua Komisarjevsky, one of the two murderers, rapists and arsonists: He should be hung "by his penis from a tree out in the middle of Main Street.'' After the trials and sentences were imposed, the inertia of Mrs. Prague’s office as a reliable vote for abolition gave her second thoughts, and she voted in favor of a morally indefensible bill that abolished the death penalty prospectively, retaining it for the 11 prisoners awaiting death on death row.

The prospective abolition of the death penalty provided a political trap door for politicians who wanted – for all the wrong reasons – to abolish the death penalty without opening themselves to charges they were indifferent to Mr. Petit’s unfortunate ordeal. The juridical problem of executing in the future 11 men in the absence of a law authorizing execution was of little concern to the cowards in the legislature, many of them lawyers, who voted in favor of a partial, self-lapsing abolition that would cost them fewer lost votes.

Theoretically, it is possible to extend to murderers who commit heinous crimes a balm of mercy, sequestering them in prison for life without possibility of parole, a stiff punishment said by some to be worse than execution, but there are, after all, limits to mercy. It proved politically difficult for opponents of the death penalty to abolish capital punishment for the 11 men who actually, not theoretically, had committed heinous murders. The entire so called “debate” on abolition of the death penalty in the General Assembly was pushed forward by theoretical bullies. Theoretically, it is possible for an innocent man to be found guilty of felony murder – but this has not happened in Connecticut in the past half century, and no one in the General Assembly would vouch for the innocence of the two murderers tried, found guilty and executed within that time period. So with most of the other arguments put forward in the General Assembly favoring abolition, most of themaddressed in Connecticut Commentary.

The argumentative structure for abolition was little more than an elaborate theoretical Potemkin Village. Theoretically, all the houses and factories look like houses and factories; but no one can live or work in the structures because they are mere facades, theoretical constructs that allow legislators to abolish capital punishment and then execute men in the absence of a law prescribing death as a punishment for their crimes. In the real non-theoretical world, such actions of a lawless state would be called murder. In the real world, the abolitionists began by decrying just sentences as “state murder” and have ended by sanctioning state murder.

The theoretical has become the real, and the real has become the theoretical. This is what happens when professors and lawyers rather than shoemakers and chimney sweepers become legislators. It is why Bill Buckley used to say that he would rather be governed by the first hundred people picked at random from the phone book than the faculty of Harvard law school.

Republican endorsed candidate for the U.S. House seat in the 5th District Andrew Roraback wandered into this mare’s nest when he reversed his position on abolition and, surprising some, Mr. Petit among them, voted against the abolition bill. However, not all flips in politics are flops among the cognescenti. Wasn’t Mr. Roraback giving Dr. Petit exactly what he wanted, asked one liberal columnist?

No, thought Dr. Petit, roaring back at Roraback, “When we met with Sen. Roraback, we respected his initial position to oppose the Death Penalty. His comments Wednesday, in our minds, cast doubt on whether Sen. Roraback has any core convictions on important issues.”

Mr. Roraback voted against the bill, he said, not because he wanted to flip on an issue that was unpopular with Republicans delegates poised to vote for or against him in the nominating convention, but rather because the bill was a transparent fraud.

On a third vote by delegates at the Republican Party nominating convention, Mr. Roraback was chosen as the nominee for the 5^thDistrict Congressional by a very slender margin over his opponent Lisa Wilson-Foley, who had brushed up against the Democrat’s favorite tar baby, former Governor-And-Felon John Rowland.

Unlike former State-Senator-And-Felon-Ernie-Newton, who spent three years in the clinker for accepting bribes and is now running for his old seat in Bridgeport, Mr. Rowland, a conservative radio commentator, has yet to offer himself as Republican Party candidate for office. None of the tar from the Newton baby has rubbed off on Democratic politicians in the state, and the silence issuing from the moral epigones now roasting Mr. Rowland is deafening.

An Interview With Don Pesci On Death Penalty Abolition

Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?

A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.

Q: “Bluster?” What ever can you mean?

A: It was never a serious proposition, just a useful piece of propaganda.

Q: But the polls!

A: Think of what is meant when it is said that a punishment deters crime. How do you collect reliable data showing that the death penalty – or, indeed, any punishment –deters an action? Reliable data retrieval showing that the death penalty has deterred Mr. Smith from murdering Mrs. Smith cannot be collected from Mr. Smith. Mr. Smith is invisible. And if he’s smart, he will choose to remain invisible. The pollster can’t find him. Mr. Smith is not likely to step out of the shadows and volunteer that he was contemplating the murder of his wife. The police still toss you into jail for attempted murder. Polls showing that murder is deterred OR NOT DETERRED by capital punishment are so highly attenuated as to border on surmise, mere guesswork. We assume that punishment deters because when we were little boys and girls punished by our parents for some innocent crime, we chose to refrain from recidivism. Dostoyevsky wrote a whole novel about crime and punishment, concluding at the end of it that a sense of honor, religious prescriptions and the tug of conscience very well might lead to confession and redemption. But crime prevention? In the absence of the virtues that may quicken the conscience and lead to genuine redemption, a policeman under every bed in the United States could not deter crime. Like the poor, crime will always be with us. The only question open for discussion is: What do you do with the criminal?

Q: You are not saying, are you, that punishment CANNOT deter crime?

A: That’s right. I am merely saying that deterrence cannot be accurately measured.

Q: The Democrats who approved abolition placed in their bill a provision that would retain Death Row for inmates who had been found guilty of heinous crimes; the death penalty was eliminated, but not Death Row. Why?

A: That is a good question. There are a number of possibilities. Politically, it was a shrewd thing to do. We do not know whether Mr. Williams’intention was punitive, but it seems so.In a post-repeal interview, Mr. Williams confessed that his ploy was primarily political. Following a visit to Death Row, Mr. Williams returned to meet with abolition legislators at the capitol. On April 9, a couple of days after the vote, CTMirror reporter Mark Pazniokas wrote“ Williams and Looney concluded that repeal was possible only if those sentenced to the new crime of murder with special circumstances faced conditions closer to death row than MacDougall.”
The Democrats could hardly argue that the new punishment tier they had established, “crime with special circumstances,” would deter murder, having argued that the death penalty itself was not a deterrent. Probably it was offered as political bait to draw in legislators fearful that a vote for abolition might be interpreted by voters in the upcoming election as indicating they were “soft on crime.” And, of course, the measure retains the union infused punishment apparatus. Democrats are big on unionization. One has the impression that any proposal made by any Democrat to save money through de-unionization might earn them a ticket to Death Row. Chris Powell, the managing Editor of the Journal Inquirer and its primary columnist, raised some questions about the new punishment tier, but he was the only one.       

Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.

A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!

Q: Personally, I would be in favor of abolishing the practice of ticketing for any reason, however specious.

A: Of course you would. I’ve driven with you.

Q: Another argument was that the penalty once applied was irreversible.

A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.

Q: But the appeals!

A: A means of postponing punishment, a judicial means of jury nullification.

Q: And the money spent!

A: Legal assistance is expensive, most especially when it is supplied “for free” by the state. The economic argument for abolition is possibly the least convincing. If you want a Cadillac justice system, you have to pay Cadillac prices. Towards the end of the debate in the Senate, a provision was introduced in the bill designed expressly to turn some “moderate”legislators towards abolition. The state would create a special process for convicted murderers it no longer could execute. They would be treated in the same manner as death row inmates. The death penalty would be abolished, but death row – very expensive – would remain for murderers who, under the abolished law, were separated and treated differently than, say, prisoners who were jailed because they had too often been randomly arrested for speeding. Given an opportunity to abolish a dollar swallowing death row along with the death penalty, precisely those senators who had argued that the death penalty process was too expensive to maintain chose to retain death row. No one laughed. How expensive might it be to retain Joshua Komisarjevsky in prison for life in a death row like environment? He is a very young man and, of course, all the arguments utilized to abolish the death penalty minus one (irreversibility in case of error) may also be used to argue for the abolition of life in prison. No doubt, tax supported defense attorneys will be permitted to make just such very expensive arguments through the state’s sometimes redundant appeal system. The abolition bill does not and cannot prevent pointless appeals. These are measurable costs. Why have they not been measured? Why has no conscience stricken, economic minded opponent of the death penalty turned his rhetorical fire on a life in prison sentence that will be prohibitively expensive?

Q: Why?

A: Because dollars spent on the judicial system – the bulk of which find their way into the salaries of judges, lawyers, some of them legislators, and prison officials -- is a straw man issue, wholly irrelevant. If legislators were concerned about expense, they would have abolished death row.

Q: Well, you don’t have to get so huffy.

The Courant And Connecticut’s Death Penalty

The editorial board of the Hartford Courant, Connecticut’s only state-wide newspaper, waited patiently until a penalty hearing jury brought in a finding that Joshua Komisarjevsky must die by lethal injection before getting into print, only hours later, an editorial demanding the abolition of the state’s death penalty.

The editorial is only incidentally related to the case at hand, and very likely portions of it were written long before a jury of his peers decided that Mr. Komisarjevsky should be executed. It is an all-purpose declaration, suitable in every death penalty case, a suit of argumentation that will fit any body of evidence.

For instance, the editorial points to “endless reviews and appeals,” not at all uncommon in death penalty cases, and laments that both Mr. Komisarjevsky and Steven Hayes, earlier condemned to death by a different jury for the same crime, the murder of three women in Cheshire, “are more likely to die of old age before they are executed.”

This is true enough. There are a number of people on Connecticut’s death row whose seemingly endless appeals have so far have forestalled their execution. The gap between the commission of a murder in Connecticut, a trial, a second penalty phase trial and the execution of a death sentence is uncommonly long, bridged by seemingly endless appeals. The paper asks whether these “agonizing and expensive trials accomplish anything?”

The answer the paper is angling for is – No. Since the capital felony process in Connecticut can be subverted by seemingly endless appeals, the state should throw up its hands, concede that its death penalty is unworkable, and abolish a procedure that is unworkable, expensive, immoral and inherently unjust. The death penalty is unjust, according the editors of the Hartford Courant, because it is rooted in revenge and subject to misapplication.

Most of these objections are all purpose caveats. Each one of them begins to collapse once they are applied to the Komisarjevsky-Hayes case.

There is no question of a misapplication of the death penalty in the Komisarjevsky-Hayes multiple murder case. There is not a single member of the editorial board of the Hartford Courant who could argue persuasively before a jury of third graders that either Mr. Komisarjevsky or Mr. Hayes did not commit the crimes of which they have been accused. And while it may be argued that somewhere in the world the death penalty is even now being misapplied, that datum simply has no bearing on the Cheshire murder case.

The notion that the Komisarjevsky jury, which returned a verdict of guilty and later found in a separate penalty hearing trial that the multiple murderer should suffer execution, was motivated by vengeance is a howler that even a shameless comic would hesitate to drag on stage; this kind of special pleading, bordering on demagoguery, just ain’t funny. Vengeance, as a general, rule is swift and inexpensive; it dispenses with costly trials and retrials. Vengeance does not empanel juries to decide questions of innocence or guilty. It does not resort to penalty hearing trials. It is emotional and not deliberative. It occurs most often out of the presence of juries, judges, defense attorneys and prosecutors. These processes bear no relation to murder, and people who argue that the death penalty appropriately applied is “judicial murder,” some of them lawyers, do not understand the meaning of the word “murder” or the word “judicial” or the word “is.”

“When the U.S. Supreme Court reinstated the death penalty, it was with the hope that it could be administered impartially,” Courant editors write. “There is much evidence that this hope has not been met.”

No kidding?

Connecticut has executed two people in the last fifty years. Where is the evidence in either case that the death penalty in Connecticut has been administered in a partial, unjust manner? There is no such evidence.

Once the baby is thrown out with the wash water, the baby is irrecoverable. We are to abolish the death penalty because opponents of the death penalty have been successful in so prolonging the gap between non-vengeful conviction and the application of death sentences as to make capital punishment expensive and harrowing for the family victims of multiple murderers such as Komisarjevsky and Hayes. This is the real argument against capital punishment in Connecticut.

Abolition proponents who are legislators have yet to tell their constituents what punishment they would recommend in the case of a convicted murder serving a life sentence who commits a second murder in prison, or whether they think a terrorist who successfully kills hundreds of people should be spared the indignity of a non-vengeful and just public execution.

Someone should ask them.

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.

The Komisarjevsky Trial And The Significance Of Pins

There was a point during the Cheshire murder trial when one of the defense attorneys representing accused murderer Joshua Komisarjevsky became concerned that small pins worn by family members of the murder victims might unduly prejudice the jury against their client.

The judge in the case, Jon Blue, ruled that the pins were not so indiscrete as to trip the prejudices of jurors.

The pin challenge by the defense followed by some months the publication of an interview Mr. Komisarjevsky gave to a reporter while incarcerated that was, the First Amendment still being the law of the land, widely covered by several state newspapers. The Komisarjevsky prison interview was fashioned into a hastily written book that found its way into libraries across the state. An effort was made, unsuccessfully, to pry the book from the hands of aggressive librarians conversant with the First Amendment.

Mr. Komisarjevsky, a very talkative fellow, also made a statement to police shortly after he was apprehended that was, most lawyers would agree, high incriminating, though Mr. Komisarjevsky was prudent enough to suggest in his statement that his companion in crime, Steven Hayes, earlier convicted of capital murder, had spread gasoline throughout the house and lit the fire intended to destroy evidence of their crime. This “evidence” included three victims, the wife of Dr. Petit and his two daughters, 11 years old Michaela and 17 year old Hayley.

So then, were the pins more or less prejudicial than Mr. Komisarjevsky several statements?

Most non-defense lawyers might agree that Mr. Komisarjevsky’s frequent admissions of participation in the Cheshire murders would more powerfully sway a jury in the direction of a guilty verdict than the discrete pins worn by family members that so alarmed defense attorney Jeremiah Donovan.

Catching sight of the pins, Mr. Donovan referred to those wearing them as the “Petit posse” and sought to prevent the members of the hanging mob from displaying the prejudicial pins in sight of prospective jurors. The pins, worn in memory of Mr. Petit’s wife and daughters, were intended to support, according to one report, “the education of young people, especially women in the sciences, and those affected by chronic illness and violence.”

Possibly it was at this point, in the early jousting among prosecutors and defense attorneys that usually occurs before any trial’s main event, that some trial watchers may have concluded Mr. Donovan was, in his assault on discreet pins, tilling the ground for future appeals. In death penalty conviction cases, appeals are necessary to run out the clock. And the more appeals the better, because protracted capital offense cases run up a tab. And the more tabs the better, because one of the generic arguments urged by death penalty opponents is that capital punishment is prohibitively expensive.


Since the death penalty itself is both an offense against God and nature, one should use every means at one’s disposal to overthrow it. Extremism in defense of virtue, the virulently conservative Barry Goldwater once said, is no vice. And if one must use a justly convicted murderer as a mere prop to overthrow a moral evil such as capital punishment, well then …

This argument is akin to that used by brother-in-law Roper in the Robert Bolt play, “A man for all seasons. Mr. Roper was asked by Thomas More how far he would go to cage the devil, to which he responded that he would cut down ever law in England to do it, receiving from the soon to be martyred More the following rebuke:

“And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? (He leaves him) This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down, and you're just the man to do it, d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake.”

Roper responds that the law itself has become More’s “golden calf,” a mere fetish that must be overthrown in the defense of a greater moral good.

The real question involved in all death penalty cases – What winds would blow if the law were to be cut down? – is not one that should be decided by clever Ropers committed to subverting death penalty laws. Jurists should aim at justice, which is the giving to all what is due them under the law. If the law must be changed, it should not be changed by legal chicanery – but by sober, morally driven legislators, like More.

Courant Prepares To Endorse Malloy-Blumenthal

The editors of the Hartford Courant are preparing to endorse Dan Malloy as governor.

As governor, Malloy will sign a death penalty abolition bill earlier passed by the General Assembly, which has been dominated these many years by the Democratic Party. The bill abolishing the death penalty -- vetoed by Gov. Jodi Rell, who asserted that the death penalty was appropriate in some cases -- passed the legislature over heated Republican opposition during the assembly’s last session. Incumbent Democrats who signed off on the death penalty abolition bill likely do not expect their numbers in the legislature to be so depleted in the November elections as to make it impossible for a Democratic dominated assembly to pass the bill with Governor Malloy at the helm.

In an editorial printed in the Courant three weeks before Election Day, “Repeal The Death Penalty,” the paper asserts that the trials of Steven Hayes and Joshua Komisarjevsky should not be an impediment to the abolition legislation the paper approves.

The “horrific” Cheshire murder trials likely will but should not “have a definitive impact on whether death by lethal injection continues to be a punishment option in this state,” according to the editorial. “We hope that it does not — that lawmakers and the next governor can summon the courage to substitute life in prison without parole as the ultimate penalty for capital crimes.”

The paper notes that a bill abolishing the death penalty would not affect capital felony prisoners convicted before the bill had been passed. An ex post facto rule of law, according to which laws cannot be retroactively applied to people whose actions were legal before laws prohibiting them were passed, still is observed broadly in the United States by most lawyers and jurists willing to bind themselves with adamantine Constitutional strictures. Attorney General Richard Blumenthal appears to have flouted that rule, binding on all lesser mortals, in the Pricilla Dickman case.

The editorial notes, “In last Tuesday's gubernatorial debate, Democrat Dan Malloy said he would, if elected, sign a bill that repeals the death penalty, but only going forward. That is, repeal would not apply to death sentences that stem from legal proceedings already underway.”

Abolition of the death penalty in Connecticut is being driven forward entirely by moral considerations. The Catholic Church and other religious institutions, as well as a secular media that considers execution for capital crimes to be morally repugnant, are in the vanguard of the abolition movement. No one seriously pretends that in the modern period criminals executed in Connecticut have been unjustly punished. The claim that capital felony punishment had been unjustly visited upon Michael Ross, one of two offenders executed in the state in the last 50 years, was always absurd.

In states like Texas, of course, things are different. Capital punishment opponents who often employ the canard that an accused might be unjustly convicted in Connecticut generally point to cases outside the state. No one, least of all the Courant, mentions that in Texas the governor is permitted to commute a capital felony sentence to life in prison if files a timely petition to the Texas Board of Pardons and Paroles that is signed by the governor.

The Courant has not yet asked Malloy whether as governor he would seek a like authority from a Democratic dominated legislature that had sent him a death penalty abolition bill he has promised to sign.

It is morally deracinated to seek abolition of the death penalty on moral grounds without also seeking some way to avert capital punishment in cases in which it has been imposed. It is impossible to conceive of a moral opposition to, say, slavery that would emancipate no slave currently held in bondage under a, emancipation declaration. After the legislature has found a way to abolish the death penalty, it will find a way to emancipate those convicted of capital punishment under a discarded law, perhaps by giving the new Democratic governor an commutation option like one that may be invoked by the governor of Texas.

In the meantime, Hayes, awaiting his just punishment under a law that will be abolished by a Democratic legislature allied with a Democratic governor, is preparing for his penalty phase trial.

Having been convicted of murdering a mother and two daughters in a fashion that even the most conscience stricken editors and columnists at the Courant consider heinous and depraved, Hayes’ lawyer, borrowing an leaf from Attorney General Blumenthal’s playbook, is preparing to argue to the jury that convicted his client that the capital felony charge should be overthrown because it would be too expensive to carry the cumbersome capital felony process through to its just end.

In May, 1990, arguing against Bill H.B. 5542, which when passed made death penalty convictions less burdensome for prosecutors by requiring courts to issue a death penalty when aggravating factors outweighed mitigating factors, Blumenthal advised:

“The death penalty not only lacks any deterrent affect. It is also been proven to be more expensive to impose than any kind of prison term. It is more expensive to house and continue the convictions, maintain the convictions of those who have been convicted and sentenced to death. That is a fact that has been proven again, and again, throughout the country. And it is the reason along with all the others, that most countries in Western Europe do not have the death penalty. Most New England States do not have it. We are one of the few in the region that does.

“So I urge my fellow members in this Circle, for all those reasons, to reject this amendment. Once again, we have a measure, a proposed statute with surface appeal, seductive on its face. But in reality it will not accomplish the purposes that its proponents say it will.”

The Courant also believes that it is too expensive in Connecticut to execute Hayes and Komisarjevsy: “As we have for decades, The Courant continues to oppose the death penalty because it has been unworkable and is expensive, unfair, risky and morally compromising.”

Especially, morally compromising: “Finally, the death penalty puts the state in a morally compromised position. As horrible as some crimes are and as evil as many of the perpetrators may be, the state should not be in their same business, the business of death.”

One supposes it would compromise the morals of the Courant to endorse as governor a candidate who approves the death penalty. That would be Republican candidate Tom Folly. The flip-flopable Blumenthal, by reversing himself on the death penalty -- as a senatorial candidate, he now approves it – has introduced a new wrinkle into Courant editorial processing: How can the paper justify itself morally by supporting both Malloy and Blumenthal?

Where there’s a will, there’s a way. And the Courant is adept at finding ways out of moral swamps.

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.