A Death Penalty Proposal

Earlier this year, the state legislature voted to prospectively eliminate the death penalty. Republican Gov. M. Jodi Rell’s veto, however, coupled with a less-than-veto-proof majority in the Democratic-controlled legislature, killed the bill for at least until the upcoming session, which begins in February.

In this 2009 iteration, the legislative and executive branches squared off on a do-or-not-do debate. A better approach might have been to retain the penalty, but only under very restricted conditions and with some restraint on the appellate process.

Indeed, in submitting the bill to Gov. Rell, the co-chairmen of the Judiciary Committee – Sen. Andrew McDonald and Rep. Michael Lawlor – practically begged her to propose an alternative approach, rather than a flat veto, if she could not accept outright abolition.

Why save the death penalty in any iteration? Doesn’t the killing of someone who has killed display the same disregard for life? John Stuart Mill (recently quoted in The New Yorker) effectively responded to that moral argument long ago by arguing that its use shows “on the contrary, most emphatically our regard for [life] by the adoption of a rule that he who violates that right in another forfeits it for himself.”

One proposal would be to change the conviction standard in capital cases so that the prosecution would bear a heavy burden of showing how combinations of eyewitness accounts, confessions, and forensic evidence could leave no doubt that a given individual had committed a crime for which execution was an allowable punishment. (Various defenses, such as “not guilty by reason of insanity” could still be asserted even in these situations.) Failing absolute certainty, sentencing would be limited to a maximum of life without the possibility of release.

Another condition: Any person currently or hereafter accused would have a right, unlimited by the passage of time, to introduce DNA or other forensic evidence purporting to exonerate him or her from guilt if such evidence was either not available at the time of trial or, if available, was not offered.

Still another condition: Notwithstanding the foregoing argument, there nevertheless must be some limits on the appeals, habeas petitions, and other exercises that a convicted criminal assigned a death sentence can advance before the sentence must be enforced. The exact range of protection is admittedly as much a matter of constitutional law as legislative decree, but the Legislature must speak to the issue nonetheless. A powerful argument in support of those who advance abolition of the death penalty is its practical unenforceability. That can and must be fixed in any reiteration of the sentence. •