The Death Penalty: My Personal Journey

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By Edward Zelinsky

Like most Connecticut residents, I watched with a mixture of fascination and horror the trial of Steven J. Hayes. Hayes is one of two defendants accused of the particularly gruesome home invasion murders in July, 2007 in suburban Cheshire, Connecticut. Hayes has been found guilty; the jury has sentenced Hayes to receive the death penalty.

Like everyone who followed this trial, I have both admired and sympathized with Dr. William Petit, Jr. whose wife and two daughters were brutalized and killed by Hayes. Unsurprisingly, Dr. Petit wanted the death penalty in this case as would I had I been in Dr. Petit‘s position. So compelling have been the facts exposed at Hayes’ trial that many normally outspoken opponents of the death penalty have remained silent as the jury assigned that penalty to Hayes for his truly evil crimes.

During the Hayes trial, I also spent much time thinking about Ricardo Beamon. Mr. Beamon too was killed in July, 2007 in Connecticut. Mr. Beamon had led a troubled inner-city life which he had turned around by founding, in the words of the New Haven Register, a “high-end urban clothing” store. Mr. Beamon, who left a two year old daughter, was killed in a robbery. In a plea agreement, Mr. Beamon’s murderer agreed to a twenty year prison sentence. Mr. Beamon’s murder has occasioned relatively little public attention.

Undoubtedly, distinctions can be drawn between these two cases. However, the similarities are great as well. Both the members of the Petit family and Mr. Beamon are gone, leaving their respective loved ones to grieve for their undeserved losses.

In this context, I have been thinking as well of my nephew Brandon who was killed last summer by a negligent car driver. I am angry about the loss inflicted on us. If I could, I would like to take matters into my own hands. Instead, he will receive a prison sentence and then resume his life. Our loss is no less because the individual who killed Brandon acted negligently, rather than intentionally.

Under these circumstances, I cannot say that we inflict the ultimate penalty of death in a principled fashion.

One other family member has influenced me as I mull these issues, my late uncle, Justice Seymour F. Simon of the Illinois Supreme Court. Seymour was a consistent dissenter in his court’s death penalty cases. The legal basis for his dissent was, at one level, quite technical, namely, that the Illinois death penalty statute permits excessive prosecutorial discretion and violates the separation-of-powers provision of the Illinois state constitution.

However, Seymour came to be a profound critic of capital punishment. Seymour did not oppose the death penalty out of a soft-minded sympathy for those who commit horrible crimes. Rather, sitting atop a large state judicial system, he became convinced that we inflict the death penalty in an unprincipled manner.

I suspect that, when she grows up, Ms. Beamon will agree.

I can’t oppose the death penalty in all cases. Capital punishment was appropriate at Nuremberg. The Israelis were right to hang Adolf Eichmann. If we catch Osama bin Laden, I would favor, in Abe Lincoln’s famous phrase, hanging him like Haman “upon the gallows of [his] own building.”

But short of these cases, I have concluded that my Uncle Seymour was correct: We cannot inflict the death penalty in a principled fashion.

I, like many of my neighbors, have concluded that Steven J. Hayes is the embodiment of evil. If the issue were simply his just punishment, death is more than justified. However, the issue is also the kind of society we will be as we mourn the Petits, Mr. Beamon and my nephew Brandon. That society, I conclude, should not embrace the death penalty.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America