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May 23, 2011

Examining What Has Been Hidden From View

By Dr. George Kain, Ph.D

Associate Professor, Western CT State University

Police Commissioner, Town of Ridgefield

Note: Dr. George Kain is a principled and highly qualified opponent of the death penalty everywhere. However, what follows is a transcription from a speech he gave on May 6 at a luncheon discussion organized by the Danbury Bar Association, at a time when a bill for the abolition of the death penalty was before the Legislature of Connecticut. The events in Connecticut weighed heavily on his mind and this is reflected in this piece, which is not meant to be a word-for-word translation and has been edited for easier reading. For a brief, and strange history of the legislation in Connecticut, please see the editor’s note at the end of the article.

Be it a question of costs, or getting justice done, or ensuring that perpetrators of heinous crimes get their just desserts or helping grieving families of victims get closure, the death penalty just does not measure up. Worse, it creates little known but serious and worrisome consequences, unintended though they be.

In 1972, the then Unites States Supreme Court Justice Thurgood Marshall (TM), stated, in what’s still referred to as the “Marshall Hypothesis” in the case of Furman v GA, that if people knew the TRUTH about Capital Punishment and how the Death Penalty was applied, in his opinion, they would never support it. 

The truth that he was referring to then, was based on issues that were only merely anecdotal at the time: racial discrimination/disparity, the risk of executing the innocent and the havoc that the Death Penalty causes in the Criminal Justice System. These were issues that had only been suggested as problematic then, but not yet researched and examined closely.

Today, they have been clearly documented. In 1972, some people laughed at Thurgood Marshall because of what he said; ironically today he’s being remembered by some as a prophet, as all the issues he spoke about back then, have turned out to plague the Death Penalty system in our country. So in keeping with the theme of the TRUTH about Capital Punishment, I’d like to bring a perspective and a reality about Capital Punishment that one does not read about in a law book, a perspective which many people are not willing to even talk about.

I went out this semester and tracked down a number of people whose voices have for the most part been hidden from public view and whose stories are just now finally being recognized and gaining national prominence.  In each and every case, these important voices are the voices of victims in the Capital Punishment process.  In Connecticut, we have historically done a pretty good job in at least trying to give victims voices — from the inclusion of Victim Impact Statements in Pre-sentence Investigations, to creating an Office of Victim Services in every Judicial District in the state. We have actually come a long way, but we can, and need to do better. And I was very proud to be a part of the increasing participation of victim’s voices in the criminal justice process while I was with the Judicial Branch as the state broke new ground in creating a Victims’ Bill of Rights and brought their concerns to the forefront in the process.

But when it comes to Capital Punishment, I have learned that the list of those who are victims in this process is a list that is actually much longer than we might realize, and whose voices and stories are just now being recognized.

Like many, I grew up a staunch supporter of Capital Punishment.  From my earliest years growing up — watching the Watts riots on TV and having my father tell me that the beatings proffered by the police on the looters were being properly administered and well justified — to being taught by my parish priest that Martin Luther King was most likely the anti-Christ — to graduating from West Conn State University with my criminal justice degree and working as a Probation Officer, I of course, supported the Death Penalty for reasons of protecting me and my fellow Law Enforcement Officers (LEO’s). I did not think twice about it, and I had plenty of support around me. It’s not that we talked about it much, but we just knew- we told ourselves- that the Death Penalty was an important tool in fighting crime and in keeping us safe. 

“These murderers are cold, calculating marauders who need to be made an example of — and killing them will prevent others- and us- from being killed.”  What a mistake that we did not talk more about it in light of what we know today.  Law Enforcement Officers who were at one time silent because of their questions concerning the actual validity of these claims, are finally speaking up.  Police chiefs all over the country are finally speaking out: in 2 studies completed — one in 2005 and one in 2009 —  police chiefs nationally ranked the Death Penalty dead last- pardon the reference- dead last in the tools that they know to be effective in fighting crime.  Even in 2010- which was a horrible year for LEOs across the country, the highest number of cops killed on the job in recent history.

When you break down the numbers, most of the cop killings happened in states that HAVE a Death Penalty! So much for the deterrent effect of having a Death Penalty on the books.                              

Prosecutors and judges and corrections administrators from California to Florida — even retired Unite Sates Supreme Court Justices — are finally speaking out against the Death Penalty because of the truths that Justice Marshall spoke about.  They did not teach in the universities in the 1970’s and 1980’s that the Criminal Justice System makes mistakes, big mistakes in big cases, and that sometimes we exact the ultimate punishment on the wrong person in those cases.  And in the case of many of the 138 people that we sentenced to death — and later learned that we were wrong — it was not the Criminal Justice System that was responsible for fixing it. It was law students and outside agencies that took up the cause, and found in 138 cases across the country, that we were wrong.  It was eyewitness ID, bite marks, burn patterns — what we now know is “junk science” —  those things sent the wrong people to the Death House.

For those who say it couldn’t happen in Connecticut —  “we don’t make mistakes like this” —  just ask Ken Ireland, or James Tillman- each of whom recently spent over 12 years of their lives locked up for crimes that they didn’t commit.  It is only because of the Innocence Project are they living free today. Victims of an imperfect system.  But those aren’t capital cases, you might say. We do it better in Connecticut with those cases. That’s probably true to some extent, but I’m not convinced that it couldn’t happen in a capital case in Connecticut. 

Add to this the fact that we want to shorten Habeas petitions!  In 40% of all death sentences handed down in this country — 40 % federal courts have stepped in on appeal and said the death sentence was wrong, either in substance or procedure.

Coming back to victims.  “We need the Death Penalty for victims. It is the least that we can do for them.  Any sentence less than death serves to dishonor the victim, and cheapens their life. They need to be given the opportunity for closure.”  Admittedly there are crimes that people commit that are atrocious. There are things that people do to others that are horrendous.  The pain and suffering that is inflicted on victims and their families in such cases are unspeakable. The perpetrators should be locked up forever. 

However, based on the huge number of surviving family members that I’ve spoken to — and I have personally spoken to hundreds of them nationwide — having the Death Penalty drags their pain and suffering on and on. In many of those cases, the family of the victims initially wanted the Death Penalty, and that’s totally understandable, It took some period of time for them to get to the point of realization that it was the sentence of Death Penalty that was the cause of the case, and with it their pain and suffering, being dragged on and on. 

It is true that there are certainly victims’ family members who, even after many years, still want the Death Penalty- and they’re still searching for “closure”- but there is no doubt that this process drags on and on and holds out a promise — a promise that we really want to believe in — that it is going to make them feel better in the end when their loved one’s murderer is dead. But the fantasy of this “closure”, the pot of gold at the end of the rainbow, leaves most of them empty, and waiting, right up to the end.  Their loved one is not coming back.

In the only rigorous research study that has been conducted in the US on “co-victims” in the Death Penalty process, Scott Vollum found, after interviewing and following hundreds of Death Penalty cases (and I quote from his study): “We find that the Death Penalty path is one that seems to suspend the lives and the healing and grieving process for co-victims.  Their needs for closure, healing and justice are, in many cases, delayed. It is not that co-victims cannot obtain these things while waiting for an execution, but the evidence shows that the Death Penalty does not necessarily help this process and, in many cases, impedes it. Co-victims thus hold onto their pain, waiting for an execution to be some form of turning point in their lives.  We must ask: how much sooner might these co-victims have moved through the natural grieving and healing processes had they not waited for the promised salve of the execution?  The realities of the Death Penalty are hardly conducive to healthy grieving and healing.” 

If the lives of victims, and their co-victims who are left behind, are truly valued, then why do we do this, and who are we really doing it for?                                             

I was proud to be the moderator for a press conference at the Capital in February where a letter was presented to the legislature on behalf of 76 surviving family members whose loved ones had been killed, 76 people with direct ties to the State of Connecticut. In their letter they called out for abolition of the Death Penalty, because they all learned that having a Death Penalty does not bring closure and does not honor their loved one.

By having a Death Penalty, we create new victims of a horrible process, after they’ve already suffered a horrible loss.

But, some argue,  in Connecticut we still need a Death Penalty for the “worst of the worst” cases, because it’s the least that we can do for the victims. Two questions arise: Is it only the “worst of the worst” murderers that get the Death Penalty here in Connecticut, where we allegedly do it better than Texas or Florida?  Or, even worse, do the worst of the worst always get the Death Penalty in Connecticut?  I don’t think so.

Look at what happened in the two capital trials that were decided recently, the Cheshire home invasion and the Fairfield felony murder robbery.  A triple rape murder in a family home, and a double murder of a husband and his wife in a jewelry store robbery.  Do you imagine that the Donnelly children did not think that their parent’s murder in Fairfield wasn’t “especially heinous and cruel”? Do you think that they thought that Connecticut got it right?  So, on the one hand, we have a horrible triple murder in Cheshire that stripped a husband and father of his family, and on the other hand a double murder of an unsuspecting mother and father who were unceremoniously blown away by a drug addict.  One was “cruel and heinous”, and the other wasn’t?

Therein lies a huge problem, the problem with Capital Punishment in Connecticut. We do it better than Texas or Florida?  We still cannot get this thing right!  And I am not blaming anyone here. It’s just simply a system that cannot be fixed.  We are human beings working in a human system that makes human mistakes and under human rules. And we’re all victims of this process. It’s not the jury’s fault; it’s not the prosecutors’ fault.  Maybe the verdict of Life in Prison Without Parole (LWOP)  in the DiMeo case was actually a blessing in disguise.

After the verdict of LWOP was rendered, Tara Donnelly, the daughter of Kim and Tim Donnelly who were killed said: “It’s been a very emotional experience for the family but this is a sense of closure and finally allows my mom and dad to rest in peace.”  So, obviously we really don’t need the Death Penalty for closure or to “honor” victims. Hopefully, the Donnelly family is going to be spared years and years of waiting for healing to occur, and Chris DiMeo won’t be a celebrity in the media for years every time a hearing is held or an appeal is being heard.

There is also research that is beginning to be done to show us new sets of victims in this horrible process. Jurors in capital cases, for example.  How many followed the on-line twittering as the Hayes verdict was being read by the jurors right here in Connecticut? The examples of jurors crying and trembling as they were forced to respond “Death, Death”.           

 And the research and the stories about corrections personnel, the “death team” and the “death squad” that have to carry out these executions. From the warden all the way down the line, victims of a process that puts them on Death Row too, and then puts them on Valium, or Prozac or Ambien because they can’t sleep afterward.  Post Traumatic Stress Disorder.  And for those of you who might not know this, this very thing happened right here in CT– where we do it better than Texas and Florida! It happened to those involved in the Michael Ross execution 6 years ago.  So I ask, why are we doing this, and who are we really doing this for?

There is one last set of victims in this Death Penalty process that I want to mention here, a group that is almost never heard from, and often sentenced to death at the same time as the offender, the family of the condemned. Some even go as far as to say they deserve it! But what did they do to deserve a death sentence?  What did they do to suffer the pain, from their point of view and in their eyes, of the state sanctioned murder of their loved one?  Can we shrug this off by just saying that their father or husband deserve to die and they simply have to suck it up and accept that and just get over it? 

One of the most touching stories I’ve ever heard was that of the mother of a son who had been murdered. She was in court during sentencing. and sitting across from her was the mother of the condemned murderer of her son. After the sentence of death was pronounced, the mother of the victim looked over and realized that the mother of the condemned man was suffering from the exact same pain that she was experiencing at that moment.  She was able to acknowledge, that the pain of losing her son to murder was the same exact pain that the mother of the condemned -and her family-was now going to endure for years and years, and that they, like her, had done nothing to deserve it.  So again I ask, why are we doing this, and who are we really doing it for?

So, in closing, what’s the point of this? I have not even talked about the many other moral, ethical and cost-benefit arguments that exist to justify abolition of the Death Penalty. Still, we need to acknowledge that by having a Death Penalty in Connecticut, a flawed process that we simply can’t fix, we are actually creating new sets of victims in capital cases, even when the verdict isn’t death. The voices of those we should be concerned about, and about whom we are learning more, are becoming louder and clearer. 

So, is having a Death Penalty in Connecticut the least that we can do for victims and surviving family members of murder to honor the memory of their loved one?  The truth is, it is the LEAST that we do TO them, and to all victims in this process, and it’s for that reason that we need to get rid of the Death Penalty once and for all.

About the author: Dr. George F. Kain, Ph,D. graduated in 2006 with his Ph.D. in criminal justice from the City University of New York (John Jay College of Criminal Justice).He is a full-time faculty member in the Division of Justice and Law Administration, a retired State of Connecticut Judicial Branch administrator and is currently a police commissioner in the Town of Ridgefield, CT, having first been elected in 1999 and then re-elected every four years thereafter. Dr. Kain is involved in many civic and community-related activities.  He is Director of Training for the Police Commissioners Association of Connecticut and on the Board of Directors of the Connecticut Network to Abolish the Death Penalty (CNADP).  In 2010, he was awarded the Walter Everett Humanitarian Award from the CNADP in recognition of his anti-death penalty work in Connecticut

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