Don Pesci: Reconsidering the death penalty


Norm Pattis, a well-known Connecticut criminal  lawyer, is reconsidering capital punishment, the death penalty abolished by the General Assembly in 2012.
The death penalty was “broken” said the abolitionists, by which they meant it could not be executed. As a practical matter, they were right.
Capital punishment was so hedged about with seemingly endless processes that it took the state of Connecticut nearly 20 years to put to death mass murderer Michael Ross, who had raped and strangled most of his eight victims, the last two 14-year-old girls. Had not Mr. Ross pulled the plug on his own appeals process, he might still be with us.
Connecticut’s capital punishment law was “broken” because the sometimes pointless navigation through all the legal breakwaters made the execution of the sentence nearly impossible. But instead of mending it – retaining the punishment for multiple murder crimes or the murder of public-safety officers for example -- the General Assembly ended it.
Mike Lawlor, later appointed by Dannel Malloy as the governor’s undersecretary for criminal-justice policy and planning and for many years the co-chairman of the state’s Judiciary Committee, was an early proponent of abolition. The General Assembly abolished capital punishment prospectively – which means that the 11 death row inmates still awaiting punishment will be executed, after their appeals processes run out, in the absence of a law prescribing the death penalty for the crimes they had committed.
Asked on WNPR’s program, Where We Live, whether he thought  that prospective repeal was advisable, Mr. Lawlor, artfully dodging the bullet, said that Connecticut was not alone in repealing the death penalty prospectively: “Of the six states that have repealed the death penalty in the last few years, all of them did it prospectively. There's nothing unique to Connecticut."
It is hardly reassuring to note that six states other than Connecticut had violated a rule of law that undergirds every law ever written. Nulla poena sine lege – “Where there is no law, there is no transgression” – is a part of the Natural Law that informs all laws, including all statutory and constitutional law.
When Samuel Johnson was reporting on debates in the House of Commons, he offered this gloss on the doctrine: “That where there is no law there is no transgression, is a maxim not only established by universal consent, but in itself evident and undeniable; and it is, Sir, surely no less certain that where there is no transgression, there can be no punishment.”
Punishments meted out in the absence of laws prescribing such punishments is the hallmark of tyrants who wink at injustice, including King John of  England, who was forced to sign the Magna Carta by the victims of his lawless rule. The six states that abolished capital punishment prospectively are hardly templates of proper justice.
It was not a regard for justice but rather legislative cowardice that persuaded members of Connecticut’s General Assembly to retain a punishment abhorrent to them for current murders on death row after they had abolished the law prescribing capital punishment for future murderers. Connecticut’s cowardly legislators knew they could not abolish capital punishment for Steve Hayes and Joshua Komisarjevsky – two paroled prisoners with long rap sheets convicted by juries of their peers of having cruelly murdered three women in Cheshire, a mother and her two young daughters – without stirring up a hornet’s nest of opposition.
And so, by abolishing the law prospectively, anti-death penalty legislators violated every argument they put forward as justifying the abolition of the death penalty. And they also violated a cardinal rule of justice – no, the cardinal rule of justice: To administer a punishment in the absence of a law warranting the punishment is the very essence of lawless tyranny.
Death-penalty opponents in 2012 asserted that the death penalty should be abolished because it was “cruel and unusual punishment” and a form of “judicial murder.” And so they abolished the law but retained the punishment in the case of the eleven men awaiting their cruel and unusual punishment on death row. But to punish a man with death in the absence of a law prescribing such punishment is quite literally – judicial murder. And, please notice, the punishment is irrevocable, precisely the argument used by death-penalty abolitionists to abolish the law.
The fatality of capital punishment – jury determinations may be wrong – still provides Mr. Pattis with reason enough to oppose the practice – but…
“But—and the fact that the word 'but' appears at all in this context surprises—I'm hard-pressed to agonize over the destruction of those who seek to destroy me and what I value. A world of perpetual love and peace is a theologian's dream, not mine. Am I condoning tinkering with the machinery of death? Not at all. I'm merely recognizing that we've always done so, and probably always will. The marvel is that we paralyze ourselves in agonizing over it.”
Don Pesci is a political columnist who lives in Vernon and a frequent contributor to New England Diary.