When Criminals Set the Agenda

Continuing coverage of the terrifying home invasion and murders of three members of a suburban Connecticut family (read today's feature in the NY Times) underscores why it will be so hard to to eliminate the death penalty in the United States. Connecticut is a death penalty state located in a region where the trend in recent years has been against the death penalty. New York's death penalty was struck down by the Court of Appeals several years ago and there has been no move by political leaders to revive it. New Jersey is actively exploring the abolition of its death penalty. In a region where there is little cultural emphasis on capital punishment and where traditions of due process make obtaining and implementing capital verdicts difficult and expensive, abolition has real prospects.

But even in such a promising region it only takes one particularly horrible and well-publicized crime to set back abolition for years. This case has all the elements: the rape of a mother and daughter, their murders by strangulation and fire (along with one other daughter), the burglary of a clearly occupied home, and two criminals with very lengthy records of repeated crimes and chances at rehabilitation.

Stephen J. Hayes and Joshua Komisarjevsky are the new poster children for the death penalty in America. For each there will no doubt be mitigating circumstances (Komisarjevsky was raped himself at 14 by a foster brother in his own home), and good defense lawyers may well be able to convince a jury compelled to think hard about the evidence to spare their lives. But in the jury of public opinion, where evidence and hard thinking are in short supply, the two will serve as prime examples of why a death penalty is justified and necessary. Politicians, even the Northeast, will likely be deterred from open support for abolition for some time, out of fear of being linked as sympathizers with scoundrels like these.

So what are death penalty opponents to do? It's too late to wish that these two miscreants had died of drug overdoses during their many previous sordid escapades (although that's where my fantasies remain). Abolition for the moment remains primarily a political path. So long as it is, criminals like Hayes and Komisarjevsky get to set the agenda.

It will not be an easy path, but the only road to abolition that criminals do not control is one that runs through human rights charters and the steadfastly abolitionist demands of international human rights tribunals. The US has tried to play both sides of human rights, claiming fealty to the ideal of human rights, but maneuvering to avoid placing its own policies under a rigorous charter of human rights.

Those of us who support abolishing the death penalty should probably stop talking about it altogether and focus on obtaining comprehensive US adherence to all existing United Nation's human rights provisions and the adoption of a Universal Charter of Human Rights modeled on the current European version. Here, we may find unwitting help from the Bush administration's disastrous policies of torture, and the tremendous setbacks for American influence in the world they have led to.