New Haven, Conn.
"If your answer to the above question is YES, the court will impose a sentence of death on this count."
It took only a simple "x" on the form, and a signature, for jurors to condemn Steven J. Hayes, convicted October 5 of six counts of capital felonies, to death.
On July 23, 2007, in an all-night home invasion evocative of In Cold Blood, Hayes strangled and raped Jennifer Hawke-Petit while her husband, Dr. William Petit, was bound in the basement. Hayes’s co-defendant, Joshua Komisarjevsky, who will be tried next year, allegedly sexually assaulted the couple’s 11-year-old daughter, who, along with a second daughter, age 17, died of smoke inhalation when the perpetrators set the house on fire, fleeing the burning building directly into the arms of the police. William Petit survived, and attended every day of the trial, projecting calm and dignity even as reporters and jurors winced over the shocking details of that endless night.
In Connecticut, voters have been gripped for the past two months by this trial. On election day, the Twitter feed #Hayes, through which thousands follow the trial minute-by-minute, echoed with sentiments equating a vote for Democratic gubernatorial candidate Dan Malloy, who opposes the death penalty, with insensitivity to Petit, who is an outspoken advocate in favor of it, and his loss. Three weeks before the midterm elections, polling found a "ten-year high in support" for the death penalty among Connecticut voters, with 76 percent in favor of execution in this case.
In the Petit family’s close-knit town of Cheshire, the pro–death penalty state representative Al Adinolfi narrowly beat Elizabeth Esty, the anti–death penalty incumbent, but not before he reportedly wandered around the town accusing high school students of being "Hayes and Komisarjevsky sympathizers" for holding signs supporting his opponent. I spent November 1 in Cheshire speaking to dozens of voters, and only one brought up the death penalty without being asked about it.
In fact, if Adinolfi had checked, and as Governor-elect Malloy surely knows, support for the death penalty was not a top priority for most voters.The fine print reveals that despite overall support ticking up (a hardly overwhelming) two percentage points since 2007, from 63 percent to 65 percent, only 6 percent of voters said the issue was decisive for them. Those calling for the perpetrators’ heads in the Cheshire murders only slightly increased their numbers as well, from 73 percent in 2007 to 76 percent today.
Moreover, when Connecticut voters are asked whether, as a general matter, life without parole would be a preferable option to the death penalty, only 46 percent of Connecticut voters still favor execution (41 percent would choose the life sentence). A nationwide Gallup poll conducted in May 2006 found similar results, with support for the death penalty hovering around two-thirds over the past decade. But as in Connecticut, Gallup found that "support for the death penalty is lower if Americans are offered an explicit alternative—’life imprisonment, with absolutely no possibility of parole,’" with slightly more Americans (48 percent) preferring a life sentence than the death penalty (47 percent).
Don’t just take the pollsters’ word for it. As Stephen Bright, president of the Southern Center for Human Rights, points out, the number of death sentences juries have meted out annually in the United States has dropped by around two-thirds over the past ten years, from around 300 per year in the 1990s to 106 in 2009.
"The ultimate poll is when you have twelve people in a jury box. It’s very hard to get twelve jurors to make a decision to execute someone," says Bright.
In California, Meg Whitman, who announced a week before the election that she would only appoint pro-death penalty justices, lost handily to Jerry Brown by more than a million votes. In the race for California’s attorney general, Republican Steve Cooley touted his "tough on crime" stance as loudly as he could, at one point opening a debate with opponent Kamala Harris by slamming her for her stated personal opposition to the death penalty, but that race is still undecided.
Even even-tempered Massachusetts caught death-penalty fever this year. Trailing Democrat Martha Coakley by more than twenty points in October, Republican candidate for attorney general Jim McKenna used a recent quadruple-murder in Mattapan to issue a loud call for reinstating the death penalty.In an unusual conflation of the issues, he told Fox TV that "Martha Coakley doesn’t believe in the death penalty, even the death penalty for terrorists." "McKenna needs something to wave his arms about," says James Rooney, an activist with Massachusetts Citizens Against the Death Penalty. Both Coakley and Massachusetts Governor Deval Patrick, who opposes the death penalty and who was criticized for it by opponents, won re-election.
Elizabeth Zitrin, a San Francisco–based criminal defense lawyer and coordinator of the International Outreach and Communications Project for Death Penalty Focus, hopes these races will prompt greater scrutiny of how maintaining the death penalty in California (at a cost of $125 million per year above what it would cost to commute the sentences of the nearly 700 inmates presently on death row to life without parole) eats away at the state’s budget, leaving fewer resources for fighting crime. Although Harris has promised to enforce the current death penalty statute should she be elected, she authored a book called Smart on Crime, which advocates low-cost alternative interventions to prison, breaking the cycle of poverty and crime.
"The death penalty is a direct hit to counties in California, most significantly with law enforcement budgets, which are in competition for those funds," Zitrin explains."If you could repurpose that $125 million and ensure that, for example, rape kits are tested in a timely way, then those rapists are taken off the street. To play on people’s fears without putting [the death penalty] in context is problematic.
Judy Kerr, outreach coordinator for California Crime Victims for Alternatives to the Death Penalty, couldn’t agree more.She lost her brother, Robert, in a 2003 murder that remains unsolved, and deeply resents the cynical deployment of victims’ family members’ grief.
"As victims, that’s when this political posturing gets so outrageous," she says."We throw all our emotional energy behind a few high-profile death penalty cases, when there are 7,000 unsolved homicides in California. [Cold cases] are a problem all over the country, but it’s really at a crisis stage in California."
In formerly syringe-happy Texas, death sentences have dropped more than 60 percent since 2004, in part, says Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, because of a law that went into effect in September 2005 that offered life without the possibility of parole as an alternative.
In 2009, there were nine new death sentences, the lowest number Texas has seen since the 1976 Supreme Court case Gregg v. Georgia once again accepted the practice as constitutional, notes Houlé.
Laura Moye, Amnesty International USA’s director of the Death Penalty Abolition Campaign, says increasing awareness of DNA-related exonerations and issues around fair trials have rendered jurors more reluctant to impose the death penalty. "Jurors feel more confident that if there’s any error, you can always unlock the prison cell."
In New Mexico, which repealed the death penalty in March of 2009, Governor Bill Richardson cited exonerations as one reason why he had had no confidence in the justice system "to be the final arbiter when it comes to who lives and who dies." In New Jersey, which abolished the death penalty in December 2007, the death penalty’s incompatibility with "evolving standards of decency," as well as the cost issue, swayed legislators. New York’s highest court ruled the death penalty unconstitutional in 2004, effectively taking it off the table as a sentencing option.
When it’s clear that painting politicians as death penalty opponents doesn’t necessarily mobilize voter support against them (and given a current nationwide shortage of sodium thiopental, the drug used in lethal injections), what compelled politicians to drag out a horse that, by most accounts, has been dead since the late 1990s?
"Well, there’s no short list of politicians doing stupid things," notes Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty. "This is a very old move in politics—but I don’t think it has the same effect that it used to."