Death, we like to say in the law, is different. Hence, the evolution of differing standards for capital cases. But the application of these standards is steeped in the same hypocrisy affecting non-capital criminal cases. The criminal justice system remains what it has always been: a farce with sometimes lethal consequences.
We’re in the kill zone just now in New Haven, where a jury will soon decide whether to execute Steven Hayes for his role in a 2007 Cheshire home invasion. The case has become fodder for the political class, and has worked its way so deeply into the minds of state residents as to have a discernable effect on public opinion polls.
According to the latest Quinnipiac University poll on the topic, support for the death penalty is at its highest level since pollsters began questioning on the topic in 1998. Sixty-nine percent of men favor it; 62 percent of women support it. When asked about the Hayes case, those numbers spike: 78 percent of men want death; 74 percent of women favor death.
I can accept that a majority want to kill those convicted of serious crimes. These are most likely the same folks who favor long and draconian penalties for all sorts of things, including possession of child pornography. I suspect most of these folks never faced charges themselves, or had a loved one who was facing serious criminal charges. It is easy to hate the other.
Consider, if you will, what else the Quinnipiac University poll teaches. Twenty four percent of men oppose the death penalty; 22 percent of women oppose it. The Cheshire-adjusted results reflect that 17 percent of men oppose death, as do 19 percent of women. A significant cross-section of the community opposes the death penalty even for the most heinous of crimes. And hidden within these numbers is another truth: A significant percentage of those polled are simply undecided about death.
I recite these figures to frame the following question: Does death-qualification of a capital jury deprive a defendant of a fair cross-section of the community? The law says it does not; the pollsters say it does. Why do we bend the law in favor of killing?
In every criminal case but a capital case we deprive juries of the information they need to make a reasoned moral response about whether a defendant should be punished. We treat jurors like fools, asking them to find isolated facts about guilt or innocence of the crime charged, but we are forbidden to tell them about mandatory minimum sentences or the consequences that follow a conviction. Prosecutors intone that a defendant must be held accountable for his acts, but no one tells jurors what that means. Except in death cases. Because death is different, we are required to have jurors decided the question of punishment.
But those jurors who cannot kill are kept off a jury: that is death qualification. By definition, more than twenty percent of the population cannot serve on a capital case. That is because they believe the state should not have the power to kill. That is a huge slice of the population to cast aside when we promise a defendant a fair-cross section of the community as jurors. If the community is to make a reasoned moral response about whether to kill, why do we by definition exclude those who think it immoral to kill? Isn’t that stacking the deck?
Of course it is. And we don’t care to change the rules because we aren’t serious about the lip service we give to fair trials. We don’t want jurors to know too much about what they are doing. In non-death cases, we keep them for being accountable for what they do by hiding the consequences of their decisions from them. In capital cases, we make sure dissenting voices are kept from the killing chamber when jurors make the ultimate call.
Rage fuels the criminal justice system, and this is nowhere so apparent as in the Hayes case. This random act of violence caused a spike in poll results about capital punishment. But rage is simply another drug, this one legal. We stoke blind fury over the crimes that strangers commit without realizing how easy it is for a loved one himself to become that very stranger. I wish the law permitted greater honesty about sentencing with jurors. I wish the law cared more about the truth and less about killing.
Reprinted courtesy of the Connecticut Law Tribune.