Death penalty repeal comes into focus

In the past legislative session this newspaper applauded the General Assembly and Gov. Dannel P. Malloy for repealing the death penalty, despite it being a politically unpopular stance. The Day has grounded its long-held editorial opposition to state executions on several principles. Humans make mistakes, but an execution is a mistake no one can correct. Societies should take the high moral ground and not kill murderers in eye-for-an-eye retribution. Imposition of the death penalty can be arbitrary, and because of appeals, often ends up costing taxpayers more than a life sentence without parole.

But while applauding repeal, we pointed to the moral equivocation that led the governor and majority in the legislature to end the death penalty only going forward. The 11 men on death row, at least according to the law, are still to be executed unless they successfully appeal their death sentences. This was a political contrivance, a way of repealing the death penalty without having to also repeal the sentences of those previously convicted and waiting on death row.

The backdrop of the legislative debate was, of course, the continuing legal proceedings stemming from the heinous Cheshire murders of Jennifer Hawke-Petit and her daughters Hayley and Michaela. Perhaps no murders had ever so enraged the Connecticut public and even many death penalty opponents did not want to be tied to commuting the death sentences of those killers, Steven J. Hayes and Joshua A. Komisarjevsky.

We took the editorial position that this made no sense; either one is morally in favor of or opposed to the death penalty. And we made the case that despite the wording of the legislation the state is not likely to execute any of those now on death row, including Hayes and Komisarjevsky. Now the pretense that the legislature could have it both ways is starting to erode.

A highly unusual trial is set to begin today at the state prison at Somers. Seven of the 11 death-row inmates will challenge the constitutionality of Connecticut's capital punishment statute. Their primary evidence will be the exhaustive 2011 study by Professor John J. Donohue III, of the Stanford Law School's National Bureau of Economic Research. Mr. Donohue reviewed 4,686 murders committed in Connecticut from 1973-2007.

He found that imposition of the death penalty in Connecticut was "arbitrary and capricious" with "no meaningful difference between capital-eligible murders in which prosecutors pursue capital charges and those in which prosecutors do not." Supposedly reserved for the "worst of the worst," in reality many of the most egregious murderers never faced the death penalty, Mr. Donohue found.

Most alarmingly, minority defendants who committed death-penalty-eligible murders of white victims were six times as likely to receive a death sentence as were minority defendants who committed death-penalty-eligible murders of minority victims. And minority defendants who murdered white victims were three times as likely to receive a death sentence as white defendants who murdered white victims.

In another appeal, death-row inmate Richard Roszkowski, sentenced to die in 2009 for killing his former girlfriend, her 9-year-old daughter and roommate in Bridgeport, is challenging the constitutionality of letting his sentence stand while repealing the death penalty going forward.

"There is no history of such a practice because nothing could be more arbitrary and capricious than allowing eligibility for the death penalty to depend on the date of the crime under the statute, a capital felony committed on April 24, 2012 is death-eligible, but the exact same crime committed on April 25, 2012 is not," wrote his attorney, Michael Courtney, head of the state's Office of the Public Defender's capital defense unit.

That logic is sound. Given the legislature's action, the death penalty in Connecticut will not stand for those on death row, and that is how it should be. We just wish the debate could have been more honest.

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