Op-Ed published in the New Haven Register- April 13, 2005

Death Penalty Always Flawed

James S. McKay

Connecticut should abolish the death penalty. No, it shouldn't do so because people like me believe it is morally wrong. We're in the minority. Poll after poll shows that most people can easily find examples of murderers who sufficiently "deserve" it as to allow them to sleep easily should they be executed. Indeed, even I can usually come up with a few names of people who have been so evil that their removal from the face of the earth would cause me no tears. It's pretty hard to defend a guy like Hitler on the grounds that he's not "bad enough" to be put to death.

Yet the question of whether someone in the abstract should be executed should be only the beginning of the debate. Justice Harry Blackmun, after decades of voting to "fix" the death penalty on the U.S. Supreme Court finally decided that his efforts had ultimately been fruitless and counter productive. Towards the end of his long and distinguished career, he announced that he would "no longer tinker with the machinery of death" and vowed to oppose the death penalty from that point on. Unfortunately, his change of heart was too little and too late. Had he reached it back in 1972 his vote might have helped sway the court to abolish the death penalty altogether in Furman v. Georgia. Instead, it became a vote to "fix" it and here we are continuing to flail away at doing so some thirty years later.

As Justice Blackmun came to realize, deciding the death penalty is "right" in general doesn't settle the question. Each case necessarily raises its own unique questions about whether it's "right" for this particular crime or for the individual person who would be executed. The devil's in the details when a human being's life is at stake. It always is.

The inescapable truth in death penalty cases is that the details are unavoidably complex. A law is written to identify who might be executed in general, yet the facts of a particular case may or may not fit. A defendant may be retarded and deserving of mercy, yet digging up the facts that would prove it from records or witnesses deep in the past can be like searching for a needle in a haystack that's been blown apart by the winds of time. A jury might choose death based on inflamatory emotional appeals during closing argument rather than on the facts. A defendant who commits his crime on Route 8 in the Waterbury Judicial District may be certain to face the death penalty because that is the chief prosecutor's policy, yet another defendant who did exactly the same thing a couple exits south on Route 8 in Ansonia may not, simply because the chief prosecutor in that District has a different sense of how to properly and fairly use his discretion. A defendant might wind up being one of what is now over 100 inmates who have been freed across the nation (not just in the rural south) who were actually innocent of commiting the murders that sent them to death row.

Resolving these issues and others like them must be done if the death penalty is to seek the moral high ground. Yet to do so comes at tremendous cost. These cases require death penalty lawyers, one of the rarest and most highly specialized fields in all of the law. They require investigation to make sure the jury has the proper facts to make a decision that they will live with for the rest of their lives. They require police and prosecutors who must spend disproportionate resources that could be used elsewhere on a relative handful of cases. They require litigation through the checks and balances of the state and federal court systems to make sure that they are fair.

Perhaps most tragically, death penalty cases prolong the anguish of the survivors of homicide who are the ones who suffer the most. Many of them await a "justice" that may never come. Others, like those in the group Murder Victims' Families for Reconciliation, protest against the death penalty because they believe it does not heal their hearts or better their world. Death penalty cases take years and resources from the victims and from all of us who could otherwise see them directed to other things like community policing and fighting drug abuse that we know can significantly reduce crime each year.

The bottom line is that getting the death penalty "right" is almost impossible. That's true everywhere, not just in Connecticut. We stand at a crossroads. Our legislature has a choice. It can put a halt to our endless quest to "fix" the death penalty, or it can take the wiser and better route of joining the rest of the civilized world and walking away from this inevitably failed and costly public policy.

James S. McKay is a former member of the Connecticut Public Defender's Capital Defense Unit and is currently trainer for the Division of Public Defender Services. His views are his own and do not reflect the views of the Division of Public Defender Services.