Commentary–

A More Honest Compromise On The Death Penalty

By Chris Powell

No wonder state government is ambivalent or hypocritical about capital punishment. A recent Quinnipiac University poll has found that Connecticut residents are too.

While a strong majority in the poll supported the death penalty, 60 to 30 percent, the margin was nearly the same, 59 to 33 percent, in favor of a proposal in the General Assembly for a two-year moratorium on executions during a study of whether the death penalty is fairly administered.

Of course Connecticut has had a 41-year moratorium on executions, and no one disputes the guilt of the seven killers sentenced to death and awaiting execution in the state. No, the moratorium proposal is simply a device for repealing capital punishment indirectly, surreptitiously, by degrees. For the moratorium’s advocates would continue to oppose capital punishment on principle no matter how many studies concluded that Connecticut’s death sentences have been imposed fairly.

In its current state Connecticut’s law is more or less a mockery, establishing capital punishment in principle, so as to be seen as tough on crime, but never putting it into practice, so as to be tough on crime. Political circumstances may make that mockery understandable, but they cannot make it right, any more than a moratorium and a study can tell Connecticut anything about capital punishment it doesn’t already know.

While there may be racial disparities in capital punishment elsewhere, Connecticut’s condemned killers are a racial mix – three are white, three are black, and one is Hispanic – and there always will be racial disparities in crime itself. Besides, if, as opponents of capital punishment say, a sentence of life imprisonment without parole is as punitive as execution, and perhaps sometimes more so, racial disparities in capital punishment would hardly matter.

No, the real problem of justice in capital punishment is the problem of convicting and executing the innocent and, to a lesser extent, the mentally retarded, who, even when guilty, may not have fully understood their crimes. Even advocates of capital punishment must admit that, as DNA evidence increasingly has proven, in recent years many innocent people have been convicted of murder and some even sentenced to death before reprieve. It follows that innocent people were executed in the days prior to DNA testing, and that innocent people will be executed in the future in cases where there is no DNA evidence, simply because even the best system of justice will be fallible.

Moratoriums and studies never will solve this problem.

But there is a practical response to it that both supporters and opponents of capital punishment should be able to agree on and that might substantially reduce the chance of an atrocity, a wrongful execution, if not a wrongful conviction.

That would be to require any death sentence imposed by a jury to win the approval of the presiding judge before taking effect – to require the judge to certify that guilt had been established not just beyond a reasonably doubt but established to a certainty, and that the defendant understood his crime and was not mentally impaired. If the judge could not certify that, there could be no death sentence, only a life sentence.

Something like this would not guarantee against judicial prejudice and recklessness any more than current procedures guarantee against juror prejudice and recklessness. But it would be one more precaution, and it could be taken without any expense and without the mockery to the law that a “moratorium” for more “study” would be.

Meanwhile, opponents of capital punishment could continue to seek its repeal – but openly, in a forthright way, so that Connecticut understood exactly that it was doing as much as anyone being sentenced to death for murder understood what he was doing.

(Chris Powell is managing editor of The Journal Inquirer in Manchester.)