Abolishing Capital Punishment Creates Death Row Dilemma

  • March 21, 2012
  • By Maggie Clark
Photo of execution facilityAP Photo

Several states are considering an end to execution. But they face a troubling question: What to do about the inmates already scheduled to die.

Connecticut legislators are again debating whether to repeal the state's death penalty, as they have off and on for the past seven years. Death penalty opponents continue to claim the punishment is too costly, too arbitrary, and racially biased; supporters insist it still deters crime. To attempt to win support from both sides, this year's repeal bill comes with a caveat: The repeal would be prospective, meaning that all 11 inmates currently on death row would still be eligible for lethal injection even after execution is banned for future crimes.

The change may be enough to get repeal past the legislature. With memories of a brutal 2007 home invasion murder in Cheshire, Connecticut, still fresh in the minds of many in the state, lawmakers are reluctant to pass any bill that would effectively commute the sentences of the Cheshire killers. The victims' family members, along with others in the same situation, still want the execution the courts promised.

“Our ideal bill would be complete repeal,” says Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, “but in reality it's very difficult to get that sort of bill through. The Senate seems to be more comfortable with prospective repeal, and we're supporting such a bill because at least it does move us in the right direction and severely limits the death penalty.”

Deciding what to do with current death row inmates is an issue that will confront a growing number of states as they consider repealing their death penalties. Of the four states that have made this move in the last five years, New Mexico was the only one to leave inmates subject to execution after prospective repeal was enacted. Connecticut lawmakers are looking to New Mexico for a precedent on how to proceed with executions after a state has repealed its death penalty.

When New Mexico's legislature passed its prospective repeal bill in 2009, Governor Bill Richardson decided not to commute the sentences of the two men already imprisoned on death row, even though he had commutation power. New Mexico's Supreme Court last year upheld the legality of imposing the death penalty on Michael Paul Astorga, one of the inmates sentenced to death before the repeal. The Supreme Court sent the case back to a lower court to determine Astorga's sentence and a jury is currently being assembled to hear the case.

If Connecticut does prospectively repeal its death penalty, the state Supreme Court will ultimately have to decide what to do with the existing death row inmates, because unlike in New Mexico, Connecticut's governor does not have the power to commute sentences. The current death row inmates would likely appeal their sentences on the basis that the death penalty goes against the state's “evolving standards of decency.” If they win on that argument, the death row inmates could have at least the theoretical possibility of going free someday.

The prospect of the Cheshire murderers eventually being released, even if remote, has reinforced opposition to the Connecticut repeal. Among those opposing it is Dr. William Petit, the Cheshire man whose wife and two daughters were brutally murdered by two current Connecticut death row inmates, Stephen Hayes and Joshua Komisarjevsky. In Petit's view, there is “no such thing as a prospective repeal.” In written testimony to the legislature's Judiciary Committee, Petit and his sister, Johanna Petit Chapman, wrote that “passage of this bill essentially voids the death sentences of those currently on death row.”

Imperfect fixes

Kent Scheidegger, a pro-death penalty scholar from the Criminal Justice Legal Fund who has extensively studied Connecticut's death penalty, argues that Connecticut should follow the example of South Dakota, which earlier this month enacted changes to its death penalty statute limiting each death row inmate to only one post-conviction appeal, which must be filed within two years of the initial sentencing. In an effort to speed up the state's execution process, South Dakota lawmakers responded to similar claims as those in Connecticut that the death penalty was not working in their state, but they took the opposite approach to abolition.

South Dakota aside, Richard Dieter, executive director of the Death Penalty Information Center, says that the impulse to fix problems with the death penalty is transforming into a desire for repeal. “I think we came to this head of the death penalty not working a while ago,” says Dieter, “and some states are still trying to reform it, but more states are saying ‘Let's vote it up or down.' There's good reason for that because of these reports and studies coming out with conclusions about how hard it is to fix it and that it may not be fixable.”

The frustration with fixes became clear at a Maryland Senate hearing on a potential repeal of the death penalty last month, when a group of lawyers argued that a 2009 revision of the Maryland death penalty law had “unleashed a wave of unintended consequences, ignoring and sometimes exacerbating a significant set of additional problems with the death penalty, including its cost, arbitrariness, ambiguity, impact on the families of murder victims, and racial and geographic disparities.”

In their fix, Maryland lawmakers changed the capital punishment statute to allow prosecutors to seek the death penalty only in cases where there is a videotaped confession, direct DNA evidence linking the defendant to the murder, or a videotaped or audio recording of the crime itself. The bill was intended to make sure the death penalty was applied only in the most unambiguous circumstances, but prosecutors say the bill has made the system even more arbitrary since, for instance, they cannot seek the death penalty in a case with five eyewitnesses but can seek it in a case with DNA evidence. Despite the testimony, the repeal bill is unlikely to make it out of the Senate committee this year.

The fixing process, says Shari Silberstein, executive director of the anti-death penalty organization Equal Justice USA, has perhaps unintentionally become part of the long-term trend of states giving up the death penalty altogether. “When you try to address the problems,” Silberstein says, “it becomes more expensive and more arbitrary. When you fix one area, you make a mess of another one.”

Public support

Silberstein points to the example of Illinois, which repealed its death penalty last year. When the legislature voted for repeal, it had had a moratorium in place for 10 years, after 13 men on death row were found to be innocent. During the moratorium, two different commissions evaluated the state's death penalty and made 85 recommendations for how the state could be more vigilant in seeing that innocent people did not make it to death row.

The state legislature enacted some of the recommendations, but lawmakers ultimately decided that no matter how much they fixed the system, there would always be the possibility of executing an innocent person. Illinois voted for repeal and, as in New Jersey in 2007, the governor commuted the sentences of existing death row inmates to life without parole. “Illinois tried the hardest to fix {their death penalty},” says Silberstein, “and still couldn't make it happen.”

But other states are not ready to stop trying for a fix. Ohio and Pennsylvania have each suspended the death penalty pending a study commission's findings. Kansas, Missouri and Kentucky are all in the early stages of debating the issue, and will likely consider many fixes before seriously discussing outright repeal.

While public opinion has been gradually trending towards repeal, more than half of all Americans still approve of using the death penalty for convicted murderers. In a 2011 Gallup poll, 61 percent of Americans supported it, although that was the lowest level of backing for capital punishment since 1972. Support for the death penalty was highest in the Midwest, where 66 percent approved of the death penalty, and lowest in the East, where 57 percent were in favor.

Meanwhile, in Connecticut, the move toward prospective repeal seems to be gaining strength. The House and the governor support it; vote counts are close in the Senate. But whatever the state decides, there will be a substantial number of critics who claim that it has not reached a satisfying solution. “They're just trying to get around the emotional aspect of the Cheshire murder case,” says Scheidegger. “Prospective repeal doesn't solve the problem because you don't know what kind of murders could happen in the future.”

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