There was much relief, and a dark, morbid sort of celebration, in New Haven the other day among those craving the death of Stephen Haves and Joshua Komisrajevsky, the villains in what will forever be known as "the Cheshire case." Both men were tried and convicted. Mr. Hayes has been sentenced to death; Mr. Komisrajevsky will soon be. But was justice done?
Connecticut, the Texas of New England, retains its death penalty. In the Northeastern United States, only New Hampshire also still has this archaic tool of blood lust still on the books. We were set to abolish the death penalty, but lawmakers were prevailed upon to retain it just this once, or twice. The 2007 slaughter in Cheshire rallied death penalty supporters.
According to polling conducted by Quinnipiac University, support for the death penalty has been rising in Connecticut. In 2005, 59 percent of Connecticut residents supported capital punishment; 31 percent were opposed. In October, 2010, support increased to 65 percent, and opposition decreased to 23 percent. By March, 2011, 67 percent of registered voters favored the death penalty; opposition also increased to 28 percent. In all years, some voters remain undecided.
The director of the Quinnipiac poll attributes the increased support for the death penalty to the Cheshire case, according to a report in The Middletown Press.
If you are among the 67 percent of voters who favor the death penalty, odds are you think justice was done. After all, the mantra goes, even among those opposing the death penalty: "If ever there were a case in which death was warranted, this was the case." On this reasoning, you might even think justice was done if you are among the five percent of undecided voters who had no opinion in March about the death penalty.
But what about the 28 percent who oppose the death penalty? Do they think justice was done? I am among the minority opposing death. All I am prepared to say is that the men were convicted and will be condemned according to law. I am not prepared to say that the law is always, or even most often, just. Equating law and justice is simply hortatory nonsense.
I heard one man comment he thought God’s will was done when the jury reached its verdict in Mr. Komisrjevsky’s case. I marvel at the ways of God. If His Omnipotence had a hand in the verdict, He has a lot of answering to do for the busman’s holiday He took one horrible night in July 2007. Theodicy explains everything and nothing all at once. Recall the use to which the Bible was put in the antebellum South; God supported slavery, you see. Sinners all those who supported abolition: the injustice of it all.
If justice is the community’s sense of what is right and appropriate, then we cannot say whether these verdicts are just. All that we can say is that those people opposed to the death penalty and unwilling to impose it were systematically excluded from the juries that convicted Mr. Hayes and Mr. Komisarjevsky. They were excluded by means of a legal doctrine known as "death qualification," a special rule applicable only in capital case were death is sought by the state. If you want to make sure no card game ever yields four aces, then remove the aces from deck before shuffling.
Jurors must be willing to vote for death to serve on a capital jury. Those who are not willing to kill, who think killing is unjust, are rejected because they are unwilling to follow the law. There are no conscientious objectors on a death-penalty jury. That voice in the community is systematically rooted out and silenced. Odds are in the Cheshire cases few, if any, of the 28 percent of Connecticut residents opposing the death penalty were given a voice. The jury was a stacked deck.
In no other sort of case in Connecticut are jurors excluded from service because of the penalty imposed. Indeed, in most cases, we refuse to let jurors know the consequences of a verdict. I have had jurors react in horror when they later learn of the sentence their guilty verdict required a judge to impose. These jurors might not have convicted if they knew the consequences of their actions. So the law blinds them to the consequences of their decision.
Let’s not call this existential schizophrenia justice. It is simply the law. Equating the law and justice is a fool’s errand. The law aspires to be just, but justice, like beauty, is too often in the eyes of the beholder. Those wanting death for these heinous crimes applaud the verdicts as the right and proper thing. Those of us who think that the State should never be empowered to kill regard the trials as an injustice, the product of blood lust and primitive instinct for revenge and a desire to strike out in fear.
Mr. Hayes and Mr. Komisarjevsky now have full-time berths on death row, where they will sit, most likely for decades, while teams of lawyers battle over this legal jot and that legal tittle. Who knows, the powerful lobby lusting for their deaths might even succeed in having some anonymous state employee paid overtime to poison the defendants to death. But let’s not call it justice. It will simply be a legal killing, in this case a new form of slavery, with abolitionists sent underground and the rest of held in bondage to the rage of those who think an eye for eye does anything other than blind us all.
Reprinted courtesy of the Connecticut Law Tribune.