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A Time To Kill

Should Connecticut abolish the death penalty?

Daniel D’Ambrosio

April 14, 2010

If there’s one thing the majority of people in Connecticut can agree on, it’s that Steven Hayes and Joshua Komisarjevsky — the men accused of murdering the wife and two daughters of Dr. William Petit in Cheshire and severely beating him with a baseball bat before setting the house on fire — should get the needle.

Yet as the co-chairman of the Judiciary Committee, Rep. Michael P. Lawlor, D-East Haven, points out, Connecticut doesn’t seem to have the stomach to execute people. It’s been 50 years since we electrocuted Joe Taborsky in 1960 for a robbing and killing spree targeting package-store clerks and owners into the early hours of the morning.

The most recent execution in Connecticut was in 2005, of Michael Ross, who admitted to killing eight women and raping several others between 1981 and 1984. He was convicted of four of the murders and sentenced to death in 1987. After years of appeals he cooperated in expediting his own execution.

“The worst crime should get the worst penalty, which of course is death, but as it turns out the process is so complicated and lengthy that in reality that’s not an option,” says Lawlor. “All we know for sure is it took 25 years to execute a guy who wanted to be executed the last 10 years [he was in prison]. He was begging to be executed. It was a suicide, basically working with the prosecutor.”

This ambivalence toward the death penalty resulted in the legislature voting last year to abolish it, with Gov. M. Jodi Rell stepping in to veto the measure and retain the execution chamber at Osborn Correctional Institution in Somers. This year, the legislature is considering a proposal to streamline the process and make it more likely death-row inmates will be executed in a more timely fashion, cutting the 20-plus-year wait roughly in half. And next year, if a Democrat takes the governorship, the legislature may very well vote to abolish the death penalty again, and this time there will be no veto.

Not since Truman Capote’s In Cold Blood have we been confronted with the tale of a more chilling act of murderous violence following a home invasion than in Cheshire. In Capote’s book, it was a Kansas farm family living on a lonely country road who were terrorized in the middle of the night. In Cheshire, it was a well-known and respected upper-middle-class family living in a small Connecticut town.

The Cheshire murders broke over the state like a thunderclap, strengthening what many believe was waning public support for the death penalty in Connecticut. In public-opinion polls, approval for the death penalty hovers around 60 percent, compared to more than 80 percent in favor in the mid-1980s, according to Lawlor.

“For a period of time the public’s opinion seemed to be slowly going down [in support of the death penalty], not precipitously, but slowly waning,” says Sen. John A. Kissel, R-Enfield. “It seems to me that since the Cheshire tragedies, that caused support to be shored up. Cheshire captured the public imagination. People can see there are individuals willing to do the most diabolic things imaginable.”

Kissel, who represents Suffield, Enfield, and Somers, where six prisons house more than 8,000 inmates, supports the death penalty, both as a deterrent to the “most heinous of crimes,” and as a sort of buffer against those inmates sentenced to life without parole who might feel they have nothing to lose by killing a correction officer.

“What would be the sanction if we can’t give worse than what they already have?” says Kissel. “It happens all the time, not resulting in death, but it’s a rare month in Connecticut that some inmate doesn’t attempt to do harm to a correctional officer.”

On March 29, death-row inmate Daniel Webb attacked a correction officer at Northern Correctional Institution. The Hartford Courant reported that Webb “sucker punched” a captain at least twice in the face as he was being escorted from the prison library to his cell. The DOC said four other staff members were injured while subduing Webb.

Lawlor is among the majority of legislators who voted to abolish the death penalty last year, before Rell vetoed the bill, saying in her press release, “The death penalty is, and ought to be, reserved for those who have committed crimes that are revolting to our humanity and civilized society.”

Cheshire hung in the air, although Rell didn’t specifically reference it. She did, however, refer to William Petit, who had earlier quoted a British Lord Justice saying some crimes are “so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” (The United Kingdom, like the rest of Europe, has done away with capital punishment.)

Lawlor opposes the death penalty not only because it puts the United States in the company of nations like China and Saudi Arabia, but also because it is “unworkable.” The most recent evidence of that, he says, is the Cheshire case, where it has been three years since the murders, and the first trial, of Hayes, has yet to begin.

Hayes recently stunned the courtroom in New Haven by asking to plead guilty, and then changed his mind after his attorneys, public defenders Patrick J. Culligan and Thomas Ullmann, refused to go along with his decision and vowed to fight it in court.

“In my opinion the death penalty is cruel and unusual punishment for the victims’ families,” says Lawlor. “What they’re put through is unimaginable, including what’s going on in New Haven right now [in the Cheshire case]. This entire ordeal would be one thing if these guys were actually being executed, but that hasn’t happened. It’s been 50 years since someone was executed against his will in Connecticut.”

Just one year after the legislature voted to abolish the death penalty, and Rell vetoed the bill, two legislators — Rep. David K. Labriola, R-Naugatuck, and Rep. William A. Hamzy, R-Plymouth — are leading an effort to shorten the complicated and lengthy process that Lawlor cites as the reason the death penalty is unworkable.

William V. Dunlap, a professor at Quinnipiac University who teaches constitutional and criminal law, says the reason for the legislature’s see-sawing approach to the death penalty — abolish one year, streamline the next — is simple.

“It’s a political issue and political issues rise and fall with the times,” says Dunlap. “It’s not surprising that at some point the legislature would be willing to abolish it and then later, after horrendous killings like Cheshire, public opinion and legislative opinion start to swing the other way. This happens with any political issue.”

This year’s bill, sponsored by Labriola and Hamzy, would limit the habeas corpus process of appeals in an effort to cut down the wait for executions from 20-plus years to something more like 7 to 10 years, according to Labriola. Although he’s not quite sure how the bill would achieve that end, Labriola says it would likely be either through limiting the number of appeals or their duration. He says he doesn’t hold out great hope for the bill’s passage this year.

Habeas petitions, which can raise a variety of issues ranging from ineffective assistance of counsel to illegal detention, kick in after direct appeals fail, and have no limits in state law. The appeals process in death penalty cases has both state and federal phases; the federal habeas courts limit most individuals to one habeas petition.

Of the 10 inmates on Connecticut’s death row, Robert Breton has been there the longest, sentenced to death in October 1989. Breton, who killed his ex-wife and 12-year-old son with a knife after a divorce, filed his state habeas petition in December 2003, the day after his direct appeal to the United States Supreme Court was denied. He’s still awaiting resolution, along with three other death-row inmates who have filed state habeas appeals.

The remaining six death-row inmates have direct appeals before the Connecticut Supreme Court, the most recent filed by Lazale Ashby in July 2008. Ashby was convicted in 2007 of the 2002 rape and murder of Elizabeth Garcia in Hartford.

“In Connecticut we have a totally unlimited appellate process, there is no reasonable expectation for the victims’ families that the sentence will ever be carried out,” says Labriola. “These people can literally appeal for decades on decades.”

Why does it take so long? A 2003 study by the state Commission on the Death Penalty identified several factors, including overtaxed staffs in the Office of the Chief Public Defender and Office of the Chief State’s Attorney, and an abundance of caution. “Given the life-or-death consequences at issue in a death-penalty case, defense counsel typically file briefs that address every possible legal or factual error committed by the trial court,” states the report.

The report goes on to say that both the OCPD and OCSA “have limited numbers of people trained in death penalty litigation who can devote time to researching and preparing the necessary briefs,” but the commission makes it clear they don’t favor hurrying things along just to get a death-row inmate strapped to the table more quickly.

“The Commission was very favorably impressed by the thorough manner in which OCPD has represented capital defendants and OCSA has represented the State in capital proceedings, including appeals,” says the report. Nothing should be done, it says, “that would jeopardize this important tradition in Connecticut capital appellate litigation.”

Both sides of the death-penalty debate are eagerly anticipating this year’s election for governor, especially since the composition of the legislature hasn’t changed significantly since last year. The leading gubernatorial candidates break down on party lines, with Democratic candidates opposing the death penalty, and Republican candidates supporting it.

Republican candidate Tom Foley says if the legislature tries again to abolish the death penalty, he, like Rell before him, will veto it.

“I think the death penalty is an integral part of the system of justice and serves as a deterrent. And I think for Americans it’s a part of fundamental justice,” says Foley. “In Connecticut it’s so rarely imposed and the procedures are so carefully implemented I think the likelihood anybody would ever be executed in Connecticut who had not committed a crime for which the death penalty applies is not a factor.”

Lieutenant Governor Michael Fedele, who is running for governor, also supports the death penalty. He too would veto an attempt by the legislature to abolish it.

“I think it should be used for the most heinous of crimes,” says Fedele. “I also believe that we should continue to invest and expand our criminal science knowledge and tools to make sure that individuals that are convicted of crimes are truly the guilty ones, based on DNA and the new technologies available to us.”

Democratic candidate Dan Malloy, who tried three homicide cases as a former Brooklyn prosecutor, wants to do away with the death penalty. He supports life without parole over putting someone to death, both on moral grounds and because it has been “plainly demonstrated people have been wrongly convicted.”

The Innocence Project, based in New York City, has exonerated 251 people serving time in prison through DNA evidence. Of those, 17 were on death row (none in Connecticut).

“I don’t think the government should be putting people to death,” says Malloy. “There is no connection at all between [utilizing] the death penalty and lowering the homicide rate. If there was a correlation, Texas would be the safest state in the nation, and it’s not.”

There have been 451 executions in Texas since 1976, including 24 in 2009 and four so far this year. The second-highest number of executions for any state since 1976 is 106 in Virginia, less than one-quarter the number in Texas. For 2008, the murder rate in Texas was 5.6 per 100,000 people, ranking it 20th highest in the nation, according to the FBI’s “Crime in the United States.” Connecticut was ranked 31st, with 3.5 murders per 100,000 people.

Even Texans appear to be having second thoughts about the death penalty. BBC News recently reported a “steep decline” in the number of new death sentences being handed out in the state, with just nine last year. In the late 1990s, reported the BBC, “as many as 48 people a year were sent to death row.” Also, according to a September New Yorker story on Cameron Todd Willingham, who is thought to have been wrongfully convicted and executed for burning down his house and killing his three children, Texas could become the first state to officially acknowledge a wrongful execution.

Democratic candidate Ned Lamont said in an e-mailed statement that he “would not have vetoed that bill [abolishing the death penalty] like our governor did.”

All of which make Rep. Gary A. Holder-Winfield, D-New Haven, look forward to the 2011 legislative session, assuming a Democrat wins the governorship, a distinct possibility in the opinion of most political observers.

“I was the person who pushed through the legislation last year that was abolishing the death penalty,” says Holder-Winfield.

“We’ll run the bill again if Malloy wins. If Foley wins I will have to take a look at if we can override a veto. That will be a huge part to whether we run the bill. If I can get it out of the house and into the senate again I would be crazy not to do it if Malloy was in.”

Holder-Winfield says he’s not concerned about being so closely identified with abolishing the death penalty in Connecticut, despite what may be a groundswell of renewed support because of Cheshire.

“I’m elected to represent the people, but in representing them I think the best way is not simply to reflect what they think when I walk into [the House of Representatives],” says Holder-Winfield. “If I learn something that doesn’t adhere to what they believe, I have to take that back to them or I’m not truly doing my job. If I lose doing what I’ve come to learn is the right thing, so be it.”