Death Penalty Courage Or Hypocrisy?

The state Supreme Court ​“took the easy way out” in banning the death penalty — in the view of not just a death-penalty backer, but also a legislator responsible for abolishing it.

“Tea Party” Republican State Sen. Joe Markley (pictured above at left) and New Haven Democratic State Sen. Gary Winfield (at right) came to that consensus in a wide-ranging discussion — much of it debate, some of it back-route meeting of minds — in the wake of the court’s historic decision this month.

The two wrestled with the death penalty issue on their latest appearance on WNHH radio’s ​“Dateline New Haven.” Winfield for years had proposed abolishing the death penalty and came close to succeeding; in 2012 his quest did succeed when Gov. Dannel P. Malloy signed a law that banned the practice in the future. Markley has been one of hte most prominent voice sin the legislature in support of the death penalty.

The Connecticut Supreme Court finished the job with its Aug. 13 opinion (with different justices offering different reasons) declaring the death penalty unconstitutional. That meant that the inmates remaining on death row — including the pair who killed the Petit family in Cheshire — must also not be put to death.

Markley and Winfield found ​“hypocrisy” in that Supreme Court decision. They differed on Malloy’s role — whether he has been a courageous leader acting on principle (Winfield’s view) or a dishonest ​“hypocrite” (Markley’s) who knew the story would end this way at the Supreme Court.

Markley and WInfield also disucssed the resignation of the state’s higher ed chief, as well as the candidacies of Donald Trump (neither’s a fine) and Bernie Sanders, on the ​“Dateline” program. Click on the sound file above to listen the episode; an edited transcript of their death-penalty discussion follows, beginning with Markley’s reaction to the following video of Malloy speaking in New Haven about the decision on the morning of its release. (The italicized comments are mine as the program host.)

“Drafted To Fail”?

MARKLEY: Oh man, this is a piece of hypocrisy beyond what I’m accustomed to stomaching. And I guess what I’d say is, Gary is off the hook on this, because he’s an honest man about the death penalty. Saying, ​“I’m against the death penalty.” That in my mind is a reasonable position.

What has really disgusted me with this is this whole farce of having a prospective repeal, which would keep it still applying to the 11 people. Malloy and his allies in the legislature had to know that there was no way the Supreme Court was going to uphold that situation, to say, ​“Well we’ve got 11 people in the state that are subject to the death penalty and nobody else is.” That distinction — the chief state’s attorney, Kevin Kane, told the legislature that it wouldn’t hold up. And we said it repeatedly during the debate. And Malloy said, ​“Absolutely not.” And I’ll read you, since we’re quoting Malloy, what he said in one of his debates when he was running. ​“Let’s be very clear — ”

This was 2010?

MARKLEY: This was 2010: ​“Let’s be very clear. I want to be very very very clear. If these two gentlemen in Cheshire are sentenced to death, their sentence will be carried out period.”

He called them ​“gentlemen.”

MARKLEY: Yeah, he called them ​“gentlemen.” He said about the bill: ​“I guarantee it will be drafted in a way as to guarantees that these individuals will be put to death.”

It was drafted that way, Joe.

MARKLEY: But it didn’t work. It was drafted that way, but it was drafted to fail.

WINFIELD: I’m not sure it was drafted to fail.

You drafted it, so let us know.

WINFIELD: Right. Listen, I’m just going to level about the fact that I was fully invested in abolishing the death penalty. Having said that, I work in the state legislature. You can’t always get what you want. So when we came to the point where, the only way to get enough traction was to have a prospective death penalty, I wasn’t happy about it. But I moved myself to the point where that’s what I was invested in. So when this decision came out last week, people were celebrating, like ​“Oh you got a victory.” And I actually said to people, ​“I don’t see this as a victory.”

I don’t see it as a victory for several reasons. One, the Supreme Court actually said something different than what we said. It didn’t just agree with the legislature.The Supreme Court [decision] says, ​“What they really wanted to do, despite what they said, is they really wanted to abolish it anyway, so let’s go ahead and do that.”

So the Supreme Court is not in agreement with what the legislature did. Let’s not get this confused. You might not like what happened. You might not like where we wound up. But it’s not because the Supreme Court said, ​“OK, let’s give the legislature what they actually said they wanted.” Because if they were doing that, they would have left it like it is. Or they would have gone back and said, ​“Look, for these reasons, which are completely separate from any impetus from the legislature, the death penalty is abolished.”

It wasn’t a unanimous decision. It was 4 – 3. They were saying that what you wanted to do was not constitutional, that if you’re going to abolish it for the people, then…

WINFIELD: If it’s not constitutional, then strike it down. You don’t have this convoluted reasoning why you abolished the death penalty. And this is coming from someone who is against the death penalty, because the thing that is most important to me is that whatever I do is actually on the level. Because I irritate people on both sides.

But do you think the Supreme Court should have said, ​“This law is not constitutional by allowing some people to be put to death and not others, so the whole law needs to be put down”?

WINFIELD: If that’s what they believe the reasoning is, then that’s what they should have done.

But Supreme Courts are like legislatures. They have diversity of opinion. They come to a compromise. I agree you expect them to be more philosophically consistent than the legislature. But some of those justices said flat out that the death penalty is unconstitutional for anybody because you’re never going to be put to death unless you’re asking to be, given that the two people who have been put to death in our memory are the ones who asked to. Other judges said, ​‘It’s just unconstitutional because there’s a retroactive clause here that only those on death row are spared.”

WINFIELD: But if you listen to that, you have two situations happening, right? One is, regardless of what the legislature has said, it’s unconstitutional. The other is, you know what? Because of the actions of the legislature, this law is unconstitutional. So, one says, if the majority agrees with one, then you just say, ​“Look, we’re getting rid of the death penalty because the death penalty itself is a problem.”

The other is about that law itself. And I need you to strike down the law. Those are the two places you come down in that situation.

Joe?

MARKLEY: Justice [Richard] Palmer actually said in his decision that the legislature was trying to pass the buck in a sense because they didn’t want to have to deal with it.

You know, I want to say something on this, because I’m curious about Gary’s reaction on this particular point. I completely understand the position saying, ​“Let’s eliminate the death penalty.” That strikes me as a reasonable, defensible position. I’ve never understood this idea of saying, ​“Let’s eliminate it for everybody except these 11 people.” I do understand politically saying, ​“Look, I want elimination and the way to move forward is to pass this bill.”

Well that’s what Malloy has been saying.

MARKLEY: That’s what Gary has been saying. I think Gary’s been honest about it. I think Malloy is the one that has been deceptive.

Let me defend Gov. Malloy here. He was running for governor in 2010. It was a very close race. It was less than 1 percentage point. During the last month of the election campaign, the Petit trial was going on. Everyone in Connecticut everyday was getting bombarded on TV news, online and in newspapers. The whole world was watching this gruesome trial. It was an impossible environment in which to talk dispassionately or intelligently about the death penalty, because people who manipulate horror to throw off debates were seizing on the Petit case to try to silence discussion about capital punishment. The numbers in the polls shot up temporarily in Connecticut to an overwhelming support of the death penalty because of the Cheshire case.

So now you’re Dan Malloy, you’re running for governor. Any analyst will tell you, there’s no way you can win in this environment being for death penalty abolition.

In fact, Bill Curry, a liberal Democrat, when he ran in 2002, in 1994, he came out for the death penalty even though he didn’t really believe it, because he thought that’s the only way you get elected.

Dan Malloy, a very ambitious politician, was willing to risk his election coming out for the death penalty [abolition] in that environment. It was a very gutsy move, because he had admitted he was against the death penalty in principle. But what he did is he said, ​“The only way it’s going to pass is if we don’t have it apply to these last 11 because of the hysteria about the Petit case. That’s the only way we’re going to move it forward.” Any thinking citizen could have looked to that and said he is philosophically against the death penalty period, because in the future we’re going to have more cases like the Petit case and they’re gruesome and they’re horrible and they test your faith in that position. So why shouldn’t we be giving Malloy credit for being gutsier than any other governor or anybody seeking a high office with that position?

MARKLEY: I would need a chart to follow the convolutions of that argument.

My argument is that it was the only way that was going to pass. He was up front about that, and he risked not getting elected by being for death penalty abolition at the height of the Petit trial.

MARKLEY: He took the easy way out, to my mind, which was he said, ​“I’m for death penalty abolition but we’re going to kill these two guys.”

WINFIELD: I don’t think it was an easy way out, if I’m looking at the situation. Because here’s the thing: I’m someone who was for complete abolition of the death penalty. I sit here with you here today saying, ​“What we intended to do is what we should have done.” Because if we told the public we were doing one thing, then that’s what we should be doing, right?

I believe the state shouldn’t be in the business of killing people. So if if I can stop the mistake of the state from killing 75 more people, and leave two people behind, or I could say it could kill 77 people, I’m going to take the 75. Because at least we’re not killing the 75 of those people. I don’t think it’s not courageous. I think it’s, ​“Look, we can’t get the state to stop killing 77 people, but we can get them to stop killing 75.”

MARKLEY: I said, ​“I think you want to move the football down the field.” And you’re right to say,” I can’t get everything I want right now, but I’ll take what’s available.” I think what Malloy did was he said, ​“I’m going to make sure that these people are still executed.” And he knew he couldn’t.

How do you know that Joe?

MARKLEY: Because he’s a lawyer. It’s obvious to anybody that the Supreme Court was not likely to maintain a situation where we said, ​“We think we have a death penalty for 11 specific individuals and nobody else.”

WINFIELD: But the only other option was to strike it down.

MARKLEY: Whatever they do, whatever other option, they were not going to stand for it. And that’s what Malloy was promising us that we were going to have.

But you weren’t voting on Malloy to be justice on the Connecticut Supreme Court. You were voting for him to governor, and he did exactly what he said he was going to do: He signed that bill.

MARKLEY: No, what he said he was going to do was that he was going to guarantee that those men would be executed.

So you as an intelligent voter are going to believe a guarantee from someone running for governor about what the Supreme Court is going to do?

MARKLEY: Not an intelligent voter, but enough voters that were listening.

So let’s turn that around. What about the unintelligent voter who gets bombarded with Petit trial coverage?

MARKLEY: That’s one of the convolutions I wanted to go back to, which is that somehow there was an intentionally incendiary atmosphere created by politicians.

WINFIELD: There was.

MARKLEY: There was an incendiary atmosphere created by the facts of the case.

WINFIELD: Listen, people brought Petit up, you know what—

MARKLEY: We’re talking about the trial, the trial in 2010.

WINFIELD: Right.

MARKLEY: There wasn’t a Republican plot to have a trial.

But what did Republican candidate for governor do? A candidate you had named Tom Foley almost became governor because he hot-dogged this and exploited the misery of the Petit family to try to bully Malloy into not having a principled position.

MARKLEY: His position was that he was in favor of the death penalty and Dan Malloy was against it.

WINFIELD: It was, ​“I’m looking out for the victims.” It didn’t take into account where all of the victims were. It didn’t take into account that the victims’ family members disagreed. It didn’t take into account anything. It said, ​“Look at this tragedy. Peer upon the tragedy and now think about what you believe about the death penalty.” That’s a show. Politicians engaged in that.

The real discussion is : Does the death penalty actually do what we say it does? Does the death penalty actually make us safer? All of those things, which is actually not what the discussion about the death penalty was about.

The conversation was about the Petit case. That’s what the conversation was about. You know, I went to a press conference where we were talking about the death penalty. Prior to the press conference, I’m standing there and I’m joking with a priest. Right, and I laugh. I later see this video on the web, and they take that video of me laughing, they overlay it in red and they say, ​“This is what (at-the-time) Rep. Holder-Winfield believes about the families of the death penalty.” And then they cut to a picture of Petit.

This is not about having a conversation about the policy. This is about using emotion to drive people to a different position.

To be fair to Joe, are we being hypocrites because we’re saying that when people are confronted with the ultimate test of whether you’d have a death penalty, like this kind of case, we’re calling it not intelligent discussion if this is front and center?

MARKLEY: Yeah, that’s almost what I’m getting at. I think, and it is emotional. Here’s the second level of hypocrisy that I’ve seen about this whole thing. And again, I give Gary a break, not because he’s here but because he’s clear about where he’s coming from, which is just what he said, that ​“If I can spare 75 people, I’ll do it, even if I can’t get those last two.” But Malloy and others, Edith Prague when we talked about it on the Senate floor, and many people said, ​“Well these guys deserve to die, but then we’re going to get rid of the death penalty.”