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The Execution Game

Pair of gloves with evidence marker
Gloves entered as evidence in the murder trial of Joshua Komisarjevsky.

Update: On January 27, 2012, New Haven Superior Court Judge Jon Blue gave Joshua Komisarjevsky six death sentences and 140 years in prison for his role in the murder of the Petits.

On November 29, the defense rested its case in the sentencing trial of Joshua Komisarjevsky. In October, Komisarjevsky had been convicted of a slew of heinous charges, including six capital felonies, due to his involvement in a crime significant both for its gruesomeness and for the national media attention it received. Four years ago, on July 23, 2007, Komisarjevsky and a man named Steven Hayes invaded the home of the Petit family—William Petit, Jennifer Hawke-Petit, and their daughters Michaela and Hayley—in Cheshire, Connecticut. The account of events that emerged during the trial is as follows. Komisarjevsky beat Petit over the head with a baseball bat, tied the two girls to their beds, and sexually molested Michaela. Hayes raped and strangled Hawke-Petit, doused the girls’ beds and the house with gasoline, and lit a fire. Only William Petit survived, his daughters dying of smoke inhalation in their burning home. In November 2010, jurors sentenced Steven Hayes to death. A year later, Joshua Komisarjevsky, who was convicted of capital offenses, faced the possibility of a death sentence.

Komisarjevsky’s lawyers knew they faced an uphill battle, but over the course of the six-week sentencing trial, they attempted to paint a picture of their client as a troubled soul deserving of mercy, not a monster. Witnesses included Komisarjevsky’s pastors, his parole officer from former crimes, and his 9-year-old daughter. On November 29, the defense rested its case and submitted a final list of forty-three mitigating factors for the jury to consider in deciding Komisarjevsky’s sentence.

Factor 2: “Josh was raised in a conservative evangelical Christian community.”
Factor 5: “Josh was sexually abused by his foster brother.”
Factor 14: “Josh sought out nurturing role models.”
Factor 28: “Josh has no history of aggression or physical violence.”
Factor 41: “Life imprisonment without the possibility of release is a sufficiently harsh punishment.”
Factor 43: “Josh is a human being, albeit severely damaged, whose life has value.”

Opposition to the death penalty tends to be part of the standard liberal political package. I heard about the Cheshire murders from a very well-informed, very liberal friend. She concluded the story with the grave coda that if she didn’t oppose the death penalty, she’d be hoping that Hayes and Komisarjevsky get the needle for what they did. I won’t deny that I agreed with her. But the state of Connecticut is not opposed to the death penalty, according to the law. What has been for so long in this state a largely symbolic penalty—rarely applied, carried out even more infrequently—has suddenly taken center stage in the Cheshire murder trials. The system is an expensive, time-consuming compromise whereby the state can condemn criminals to death without having to execute them. But the question of whether the state ought to take the lives of criminals is a yes-or-no question.

Several weeks into the sentencing phase of Joshua Komisarjevsky’s trial, a woman named Clare Hogenauer with a wheeled walker was sitting outside the courthouse where Komisarjevsky’s trial was taking place. Dressed in a fuzzy navy coat, scraggly tufts of gray hair poking out from under a bright pink cap—she is often mistaken for a homeless person, even though she is a former attorney and lives in a Manhattan penthouse—Hogenauer had surrounded herself with signs bearing urgent messages to the jurors in Judge Jon Blue’s courtroom: “Help Dr. Petit: Vote Life!”

Even though Petit has publicly stated his wish to see both murderers put to death, Hogenauer believes Petit is asking not for closure, but for many more years of pain. “He just hasn’t quite realized it yet,” she said, the wisdom of an eccentric great-aunt in her voice. “With the appellate process, this case goes on for decades, and this poor dear and his family would not be able to get on with their lives. Seeking an execution just eats them up with hate, anger, and revenge.” Hogenauer spoke of the “other victims” of capital punishment: the attorneys, judges, jurors, and witnesses who are morally and emotionally tormented for years after taking part in a trial that leads to execution. She told stories about lawyers weeping openly in court, executioners experiencing religious conversions. After all, she has had at this for a long time, even while battling lymphoma. The death penalty, it seems, can also eat up the people who fight against it.

“This will give you chills,” Hogenauer said, extracting a scrap of paper from the messy stack of cards and receipts in her wallet. It was the corner of an envelope, showing a faded return address scrawled under the name Michael Ross. Ross, who was convicted of raping and killing eight women in the early 1980s, is the only person to be executed in Connecticut since the Supreme Court’s 1976 decision in Gregg v. Georgia, which upheld the legality of the death penalty after a brief moratorium. In 1994, Ross’s death sentence was overturned due to the mishandling of psychiatric evidence in his case, but the sentence was reinstated in 2000. By that time, Ross had decided he was ready to die for his crimes, choosing to forgo any further appeals. The scrap that Hogenauer carried around like a relic was from an envelope that had once contained one of several letters Ross sent her while on death row.

Ross’s letters, thanking Hogenauer for her support, were meant to reach her after his death, but, due to multiple stays of execution, Hogenauer and others received multiple letters, each seemingly coming from beyond the grave. The last one, from May 2005, was not a false alarm. That month, Ross became the first person to be executed in Connecticut since 1960. Connecticut, which currently has ten people on death row, is similar to the few northeastern states that still have death penalty statutes on the books in that the death penalty is, in practice, almost never carried out. The exception was a man who chose to die instead of fighting indefinitely through the appeals process. Ross’s decision to die in order to spare his victims’ families the pain of further appeals was “well-intentioned,” Hogenauer said. “But it was a mistake.”

While Ross, Komisarjevsky, and Hayes all confessed to their crimes, a state that administers the death penalty runs the risk of executing people who have been wrongfully convicted. In 1989, James Tillman was convicted of sexual assault, robbery, kidnapping, assault, and larceny. He was not sentenced to death, but his convictions got him forty-five years, of which he served sixteen and a half before being exonerated and released in 2006. State Senator Edith Prague of Norwich cites the Tillman case as significant in changing her view of the death penalty. She had previously taken a stance during the trial of Ross, who murdered the granddaughter of one of Prague’s neighbors. This personal connection had made Prague a supporter of the death penalty for criminals like him, but James Tillman’s exoneration shook her belief. “I really began to think about my position on the death penalty and decided that the chance of somebody being innocent and facing execution for something they didn’t do was just too much for me to bear,” Prague said. “So I decided I would vote for repeal and for life in prison for somebody who commits a heinous crime.”

Recently, opponents of the death penalty in Connecticut have come very close to winning repeal. In 2009, a repeal bill passed both houses of the state legislature, but Governor Jodi Rell, a Republican, vetoed it. This past year, with Dannel Malloy, a Democrat and an opponent of the death penalty, in the governor’s office, activists hoped to push another bill through the legislature. But in May, when abolishing the death penalty came up for a vote once again, Prague voted against repeal and for the death penalty. Steven Hayes had already been sentenced to death by this point, but Komisarjevsky still awaited trial. Like Tillman’s case, the Cheshire murder trials had given Prague another change of heart. Just before the death penalty repeal vote in the state senate, Petit requested to meet with Prague.

“I don’t know what the families would feel about our death penalty,” Prague said. “It certainly is a long, drawn out process. It costs the state millions of dollars because of the appeals. But that wasn’t the issue for me. The issue for me was that the bill was something that Dr. Petit’s lawyer said that they wanted and needed in order to get the death penalty for these two…” she trailed off, pausing before referring to Hayes and Komisarjevsky. “I don’t know what you want to call them. I can’t find a word to describe how horrible they are, both of them.”

Prague was able to find words for Komisarjevsky last May, however. “I said they ought to hang him from his penis from a tree downtown,” she told me. Even though Komisarjevsky’s lawyer protested that this type of comment could potentially sway his client’s future jurors, Prague said that the reaction amongst her constituents was positive. “I had one man call and say he wanted to pick out the tree.” Prague and Maynard both voted against repeal, and the bill to abolish the death penalty failed once again.

Could the movement to abolish the death penalty in Connecticut really have been halted by a single conversation? Does the understandable desire of one heartbroken man to seek his version of justice override the high costs—financial and otherwise—of capital punishment? Speaking to Prague, I remembered Victoria Coward, a representative of the Connecticut Network to Abolish the Death Penalty, or CNADP, and a New Haven mother whose son Tyler was murdered when he was 18. At a talk at Yale this fall, Coward didn’t focus on her search for justice through the legal system. Instead, she talked about the emotional toll her son’s death has taken on her family and about the lack of state resources to aid the families of murder victims. It is as if the state assumes that its penalties—including the sentencing of the murderer to death—can somehow bring victims’ families a sense of “closure” when, in reality, nothing can. Ben Jones, Executive Director of CNADP, takes issue with how death penalty law “holds up certain murders as being particularly heinous while ignoring the fact that all murders are heinous. It can be disrespectful to try and distinguish between murders and say that some are more heinous than others.” If Victoria Coward had gone to Hartford in May to plead with Prague to vote for repeal, at the same time as William Petit was asking her to vote against it, whose story would have proven more persuasive?

Prague knows that in practice, Connecticut does not perform executions, but she still thinks that both Hayes and Komisarjevsky—if he is sentenced to death—will eventually be executed for their crimes, pending changes in the way the death penalty works in Connecticut. “If the death penalty stays in place, I think we absolutely need to limit the amount and number of appeals,” she said. “I think there’s a lot of work that needs to go into the death penalty law that we have on the books.” A death sentence in Connecticut is not a one-way ticket to the execution chamber. Instead, it places an inmate in a limbo between life and death. It’s kind of like tossing someone into the middle of the ocean. As long as he can tread water throughout years of appeals, he can stay afloat. It’s not a great life, by any means, but for most on death row, it beats the alternative. Only if a prisoner chooses to stop treading—as Michael Ross did—will he drown. Death penalty proponents would have a hard time arguing that the current system either deters crime or delivers justice to victims’ families. Of course, opponents of the death penalty argue that, even when it is carried out, capital punishment serves neither of these purposes.

On November 23, Oregon governor John Kitzhaber ordered a moratorium on the death penalty for the remainder of his term in office, joining politicians in Illinois, New Mexico, New Jersey, and New York who have abolished or altered death penalty laws in recent years. Only two men have been executed in Oregon since the death penalty was reinstated there in 1978; both, like Ross, had to request an end to appeals in order to receive their sentences. “The reality is that, in Oregon, our death sentence is essentially an extremely expensive life prison term,” Kitzhaber said, according to The Washington Post. The decision had a direct effect on an Oregon death row inmate named Gary Hauger, who had abandoned further attempts at appeal and was to die on December 6. Hauger is angry. His victims’ families are angry, understandably. But Kitzhaber’s reasoning is simple. “I simply cannot participate once again in something that I believe to be morally wrong,” he said.

Whatever you believe about the inherent morality of capital punishment, think about its iteration in states like Connecticut, Oregon, and Pennsylvania (my home state), where it is up to the convicts to choose whether or not they die, where the death penalty serves as a hollow symbol of justice. Think about Victoria Coward, whose daughter has sunk into depression and substance abuse that no punishment of her brother’s killer could reverse. And while you are thinking, Joshua Komisarjevsky, who has yet to be sentenced as of press time, will be wondering if a hand will come down from above to scoop him out of the water. Whether or not the state legislature votes to abolish the death penalty during its next session, Komisarjevsky will spend the rest of his life locked in prison with a horrible burden on his soul. In the meantime, he’s begun his endless wait. The defense has rested its case.

Photograph: Connecticut Judicial Branch

  1. I had heard that Mrs. Petit was staunchly against the death penalty. If true, I find it doubly troubling that her husband would go against the wishes of his own wife. I would also agree that this ultimate penalty speaks more about us and a society that can consciously choose killing as a punishment for killing. It is hypocritical and lowers us to the level of being killers ourselves when life without parole would not give the prisoner the quick out from a 6X12 room in jail that the death penalty offers these murderers. Murderers are indeed people too, and to take a life is what we are supposed to punish, not do. To have the blood on our conscience, of a person already under State control and not a threat to anyone anymore, is heinous and often adds further guilt and torment to the life of the executioner and all those who lead to such an outcome.  We know we have employed the death penalty in the past only to find the person innocent, too late, which makes us executioners of innocent people too. If an eye for an eye leaves a country blind, then by definition if killing is always punished by death there should be no one left to speak because the executioner too would be guilty of killing. We are only in league with countries like China, North Korea, Iraq and Iran in continuing this monstrous demonstration of man’s inhumanity man.  Would that Petit would respect his wife’s memory differently, for everyone’s sake. I strongly reject and protest my taxes being used to cause further suffering and indeed murder. This is not our choice but Dr. Petit’s, and he should have taken a vow as a doctor to first, “Do no harm.” Instead, he is going to make murderers out of us all, in the name of vengeance? That is truly a low emotion to inflict on the rest of us. Do not think that I am in any way forgiving the acts of these condemned men but let us not add more fuel to our worst instincts. The rest of the developed world has disavowed capital punishment as inhumane; what do people who claim to be Christians not get about “Thou shalt not kill?”

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