Hard cases

As readers in the northeast will likely know (I don't know how prominently the story has played elsewhere) Connecticut is scheduled to start a death penalty trial in a few days that makes opponents of capital punishment -- including me -- feel lonely and maybe a little defensive. Briefly, in July 2007, two parolees with long histories of non-violent crime invaded the home of an affluent family in a leafy suburb, held and tortured them for hours, and now are charged with sexually assaulting the mother and 11 year old daughter, and killing both of them along with an older daughter. Only the father, a prominent endocrinologist named William Petit, survived.

The attorneys and principals have been under a gag order in the case since shortly after the event, and the police have also shut up, so details which were reported early on have not been repeated. I will not recount them here because the reported actions were so depraved that it would be pointlessly disturbing. Suffice it to say that what the jurors are likely to hear presents a very daunting challenge to the defense. Of course I have no idea what sort of a case the defense will present, but the facts of the crime are not in question. The defense might actually have a slightly better chance of arguing diminished capacity with the other defendant, Joshua Komisarjevsky, who goes on trial later.

The case has generated several controversies. One Brian McDonald published a book about the crime, featuring a jailhouse interview with Komisarjevsky. Dr. Petit vociferously objected and he had public opinion overwhelmingly on his side. This is not such a hard case, however. Under our constitution Mr. McDonald is guaranteed the right to publish his book, however objectionable one might find it. In my view, there will have to be one or more books about these events, but the right time is after the trial when all of the facts are known and the various ethical and policy questions have played out. However, Komisarjevsky evidently violated the gag order by talking with him, which raises the question of the free speech implications of the gag order. These are common in high profile proceedings, but they are a barrier to the public learning the truth.

It won't surprise you that these events did not generate an outpouring of public support for parole policies in Connecticut. Governor Rell responded by suspending parole for all persons convicted of violent offenses, never mind that this would have had no effect in this case. The Governor set up a commission (natch) to review criminal justice policies in the aftermath of the crime, and the only real result was equally irrelevant to the case. The state eliminated furloughs for prisoners who were scheduled for parole. (Hayes and Komisarjevsky were not on furlough; they had been paroled.) But shortly thereafter, facing a budget crisis, lawmakers and the governor agreed to reinstate furloughs. Now the governor is closing a prison, which will inevitably result in more, not fewer, paroles.

Dr. Petit has been publicly advocating for the death penalty in this case, drawing the ire of Hayes's defense attorney. "Ullmann said Petit and other relatives were giving daily press conferences and trying to sway jurors outside of court. He said he should have the right to respond."

Hayes tried to commit suicide in prison and managed to hoard enough prescription meds that he nearly succeeded. It has also been reported that his lawyer has blocked him from confessing.

But with all of this fodder for vexing arguments about conflicting rights, the greatest difficulty of the case is the most basic. Both defendants have offered to plead guilty in exchange for sentences of life without possibility of parole, but prosecutors have refused. The public wants the death penalty and that's what the state is determined to give them.

I can only make the same old arguments. Killing these guys won't undo their crimes. It will make killers of the prosecutors, jurors, prison warden, guards and executioners. It forces us to make choices about who lives and who dies and no matter how confident you feel about it in this particular case, there will always be cases that aren't clear. Neither of these individuals created themselves, and who knows what you would be if your life had been different? To allow them to live is to demonstrate the respect for humanity that they did not have. The prospect of the death penalty obviously did not deter them; it only forces Dr. Petit and the rest of us to observe a trial at which the horrific events of that day will be repeated in every horrific detail. It gives Hayes and Komisarjevsky the easy way out, the way accused "Craigslist killer" Philip Markoff chose for himself. So it does no good for anyone and only does harm. Dr. Petit thinks it's what he wants but I can pretty much guarantee one thing: he will feel no better after these men are executed.