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November 11, 2010

"The Sooner Hayes Is Executed, The Better"

The title of this post is the headline of this potent commentary in today's Hartford Courant, to which I immediately respond "Yeah, good luck with that." Here are excerpts:

The killer shall be killed — so said the jury in the Cheshire home invasion murder case. Steven Hayes, one of the two men accused of entering the home of the William Petit Jr. family on that July night in 2007, will join 10 other men on Connecticut's death row.

Hayes has earned the needle. He should die, even though his death will not bring back Petit's wife, Jennifer, and daughters, Hayley, 17, and Michaela, 11.

He should die, even though his death will not make us safer.  He should die, though his death will take forever and a day to occur.  He should die, though the logic and reason for the death penalty offer little to support its continuation....

Few criminology experts would say the death penalty is a deterrent.  But that is beside the point.

As one acquaintance who had been against the death penalty said: "You think about if this were your wife and kids."  He said he would have no trouble ending Hayes' life.  Everyone wants justice for a wrong....

So Hayes will die by the state, though his death will be a long time coming.

According to Bureau of Justice statistics, the average inmate on death row spends at least a decade awaiting execution.  Michael Ross, the last person to be executed in Connecticut, sat on death row for 17 years before his execution.  Many of those seeking justice for the victims may well die before Hayes.

It would seem that the execution of the execution should be swifter.  But perhaps that would diminish the punitive aspect of the death penalty: the waiting.  Hayes will spend much of that time away from the rest of the prison population, never knowing when his time to die will come.

And when he is finally put to death, it will be a sedate and peaceful death compared to the horrendous and terrifying death suffered by his victims.

There is little logic and reason for the death penalty, though 35 of the 50 states have it and though 3,261 inmates were on death row as of Jan. 1, according to the NAACP Legal Defense Fund.  Considering how long it takes to carry out the death sentence, it may as well be a life sentence.  But logic and reason have little to do with wanting someone like Hayes to die, any more than logic played a role in what he did in the Petit home.

Those who cold-bloodedly do wrong in taking a life should have their lives taken.  Agreed, there are flaws.  There is injustice in how the death penalty is applied in America.  But in this case, Hayes has earned the needle he will get.  The final crime is that it will take so damn long.

November 11, 2010 at 09:31 AM | Permalink


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As to this particular case, as stated before, I concur.

Posted by: anon2 | Nov 11, 2010 10:52:41 AM

This piece represents abolitionism as it needs to be if it is ever to have a chance in this country.

It's obvious that the writer opposes the death penalty. But he's willing to examine this appalling case on its individual facts. He thus correctly concludes in the final paragraph -- after listing all his considerable misgivings and doubts as a general matter -- " But in this case, Hayes has earned the needle he will get. The final crime is that it will take so damn long."

The problem with abolitionism as it currently exists is that it's too absolutist and ideological for a pragamtic and practical country. Our people, quite correctly, are not going to buy into a NEVER, NOT EVER approach to capital punishment, because they know that there are always going to be cases, like this one, in which nothing else even approaches justice. Imprisonment will do for many murders. But many isn't all.

If abolitionism would come off its high-horse rigidity, people would at least listen. Until then, it can expect that a two-thirds majority, or more, will continue to turn their backs on it.

Posted by: Bill Otis | Nov 11, 2010 10:58:03 AM

There's no reason this death sentence cannot be carried out in five years. The attorneys had years to prepare, especially since there really wasn't too much to the guilt/innocence phase. And there shouldn't be much in federal habeas either.

Posted by: federalist | Nov 11, 2010 11:30:00 AM

how many were hanged for the My Lai massacre ??????

Posted by: claudio giusti, italia | Nov 11, 2010 11:43:45 AM

claudio --

I know, America stinks.

Oh, and do tell, how many were hanged for the crusades?

Get a life, claudio. You really do need something else to occupy your time.

Posted by: Bill Otis | Nov 11, 2010 11:57:39 AM


I seriously doubt state appeals can be completed in five years, not counting federal petitions on top of that. Have any of Connecticut's death row inmates exhausted state remedies yet?


I believe you made that argument earlier. You would make a great defense attorney handling death appeals. Repitition.

Posted by: DaveP | Nov 11, 2010 11:58:04 AM

federalist --

You never know. They might have to import one of the drugs from Rhode Island, in which case George will go ballistic.

Posted by: Bill Otis | Nov 11, 2010 12:00:43 PM

"George will go ballistic"

I have been waiting for Doug to post on Oklahoma's requested change from the sodium piotental that is in short supply. Should be interesting.

Posted by: DaveP | Nov 11, 2010 12:08:42 PM

DaveP, I agree--won't happen. But there's no reason why it shouldn't.

Oklahoma's move shouldn't be interesting. Baze applies to this as well. Pretty straightforward. If the murderer cannot make the required showing, then the execution shouldn't be stayed. What this judge does is a different matter. He's already shown himself to be a bit off the reservation.

Posted by: federalist | Nov 11, 2010 12:34:33 PM

Mr. Bill, you condone unlawful executions, I don't. You think it is a trivial detail, I don't. Judging by most of the comments on sodium piotental shortage articles, most people agree with you. In short, they agree the government need not obey its own laws. That is scarier than another delay because it leads to all kinds of slippery slopes.

Regarding this article, one sentence stands out and it is why I oppose the DP.

"But logic and reason have little to do with wanting someone like Hayes to die, any more than logic played a role in what he did in the Petit home."

That equation is too equal. You could argue the distinction is that the killing of Hayes would be lawful, but you do not require it to be lawful and instead accuse me of going ballistic.

Posted by: George | Nov 11, 2010 12:38:15 PM


never count out the creative death row attorney and the judges who submit to these claims. We have seen that just a couple of weeks ago. The hearing is next week in OK.

Posted by: DaveP | Nov 11, 2010 12:40:56 PM

My Lai is 50 years old, not 1000. Nobody was jailed for the rape,torture and killing of little girls and women. NOBODY.

Posted by: claudio giusti, italia | Nov 11, 2010 12:52:20 PM

George --

"Mr. Bill, you condone unlawful executions, I don't."

You don't "condone" LAWFUL executions, which is why you go ballistic over an utterly inconsequential detail like whether the drug comes from the UK or the US. If you asked a normal person whether that made any difference, they would look at you as if you were nuts.

Incidentally, the execution was fully lawful. Remember? The Supremes OVERTURNED the stay granted for exactly the reasons you're still pushing.

On the other hand, maybe you know something I don't. Would you please cite for me the case and judgment holding that the Landrigan execution was unlawful?

And no, I am not asking for your biased reading of the law. I am asking for the JUDGMENT of a neutral arbiter -- you know, a court.

Posted by: Bill Otis | Nov 11, 2010 12:57:09 PM


How many Italians were executed for using WMDs on native Ethiopians during the Abyssinian War?

Just sayin'...

Posted by: Res ipsa | Nov 11, 2010 1:20:43 PM

Mr. Bill, you know damn good and well SCOTUS never reached the FDA issue because there was no offer of proof. Arizona got off on that technicality. We'll see if California is able to hide behind the executioner protection program. Evidently not...

"Only seven of those condemned prisoners have exhausted all of their appeals and are eligible for execution, said Christine Gasparac, spokeswoman for the attorney general's office.

"Gasparac declined to say whether state law prohibits the import or use of lethal-injection drugs manufactured abroad and lacking U.S. Food and Drug Administration approval."

Stay tuned.

Posted by: George | Nov 11, 2010 1:39:56 PM

Well, The conclusion is you can kill anybody you like, but not white, rich, nice, american persons

Posted by: claudio giusti, italia | Nov 11, 2010 1:45:39 PM

Otis, next year I will be in retirement and I will hammer you round the clock

Posted by: claudio giusti, italia | Nov 11, 2010 1:46:54 PM

shame on you bill!

"which is why you go ballistic over an utterly inconsequential detail like whether the drug comes from the UK or the US."

First it's hardly inconsequential that the U.S. is violating it's OWN drug importation law! If it's ILLEGAL for any of the as you call em "normal american" to import non-fda approved drugs then it's ALSO ILLEGAL for the govt to! Sorry the govt get's it power from the people..if the people don't have the right....how can they GIVE IT TO THE GOVT!.


"If you asked a normal person whether that made any difference, they would look at you as if you were nuts."

Last time i looked we were not talking about what a "normal american" can do...by law they are LEGALLY PROHIBITED from importing drugs from outside the U.S Even though it is the SAME drug they are getting locally. What we are talking about is if it's legal to import a non-approved drug....federal law says NO!

Posted by: rodsmith | Nov 11, 2010 2:11:18 PM

rodsmith --

"Last time i looked we were not talking about what a 'normal american' can do..."

You capture quite adroitly the whole problem with abolitionism.

Posted by: Bill Otis | Nov 11, 2010 2:41:47 PM


you are a great posterchild for the ultra left. I knew Italy was liberal, but you take the cake man. What you don't realize is that Italy and the US are two different worlds.

Posted by: DaveP | Nov 11, 2010 2:56:05 PM

I am very sorry for you, but I spent my best years working on soviet dissent and I wrote my graduation thesis about this.
I can also say that Italy had not its "Norimberga" because Allied preferred not to have it for strategical reasons.

Posted by: claudio giusti, italia | Nov 11, 2010 3:04:28 PM

I wish my grandfather was still alive to debate you on this at his home in Abruzzi. Friendly, respectful debate of course with wine.

Posted by: DaveP | Nov 11, 2010 3:12:19 PM

DaveP, sad but true. I wonder if Judge Chatigny will get involved, LOL.

Posted by: federalist | Nov 11, 2010 3:34:32 PM

Chatigny eventually will be seated on the 2nd circuit. It would be interesting to see if he ever judges this case. Of course, don't hold your breath. It will be many, many years before this Hayes case gets into federal court if it isn't reversed in state court. I wouldn't trust the Connecticut Supreme Court at all.

Posted by: DaveP | Nov 11, 2010 5:53:58 PM

One of the strongest arguments for the abolitionists stems from the kind of case that follows. federalist and Bill Otis, what do you say to this:

From: Steve Hall
Sent: Thursday, November 11, 2010 4:28 PM

Thursday, November 11, 2010

Texas Observer Exclusive: DNA Tests Undermine Evidence in Texas Execution
New results show Claude Jones was put to death on flawed evidence.

by Dave Mann
Claude Jones always claimed that he wasn’t the man who walked into an East Texas liquor store in 1989 and shot the owner. He professed his innocence right up until the moment he was strapped to a gurney in the Texas execution chamber and put to death on Dec. 7, 2000. His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones.
But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. The day before his death in December 2000, Jones asked for a stay of execution so the strand of hair could be submitted for DNA testing. He was denied by then-Gov. George W. Bush.
A decade later, the results of DNA testing not only undermine the evidence that convicted Jones, but raise the possibility that Texas executed an innocent man. The DNA tests—conducted by Mitotyping Technologies, a private lab in State College, Pa., and first reported by the Observer on Thursday—show the hair belonged to the victim of the shooting, Allen Hilzendager, the 44-year-old owner of the liquor store.
Because the DNA testing doesn’t implicate another shooter, the results don’t prove Jones’ innocence. But the hair was the only piece of evidence that placed Jones at the crime scene. So while the results don’t exonerate him, they raise serious doubts about his guilt. As with the now-infamous Cameron Todd Willingham arson case, the key forensic evidence in a Texas death penalty case has now been debunked.
“The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong,” said Barry Scheck, co-founder of the Innocence Project, in a statement. “Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”
Jones was 60 years old when he was executed on December 7, 2000—the last man put to death by then-Gov. Bush. The Observer and three innocence groups recently obtained the hair after a three-year court battle and submitted it for mitochondrial DNA testing.
That technology didn’t exist when Jones was convicted in 1990. But the DNA test had been developed by 2000, when Jones’ execution date was nearing. He requested a stay of execution from two Texas courts and from the governor’s office in order to test the hair evidence and prove his innocence. His requests were all denied.
Documents show that attorneys in the governor’s office failed to inform Bush that DNA evidence might exonerate Jones. Bush, a proponent of DNA testing in death penalty cases, had previously halted another execution so that key DNA evidence could be examined. Without knowing that Jones wanted DNA testing, Bush let the execution go forward.
Had the DNA tests been conducted before his execution, Jones might still be alive today. Scheck says these results, had they been obtained 10 years ago, probably would have led judges to throw out Jones’ conviction and grant him a new trial.
“I have no doubt that if President Bush had known about the request to do a DNA test of the hair he would have would have issued a 30-day stay in this case and Jones would not have been executed,” Scheck said.
Claude Jones was no saint. Born in Houston in 1940, he was arrested numerous times and spent three stints in prison on robbery, assault and theft charges. While serving an eight-year sentence in a Kansas prison for murder, Jones allegedly doused another inmate with lighter fluid and set him on fire.
But Jones wasn’t executed for his previous crimes. He was put to death for what allegedly happened on the afternoon of Nov. 14, 1989.
Jones and an accomplice named Kerry Daniel Dixon pulled into Zell’s liquor store in the East Texas town of Point Blank, about 80 miles northeast of Houston. They had a .357 magnum revolver given to them by Jones’ roommate, Timothy Jordan.
Either Jones or Dixon remained in the pickup truck, while the other went inside and shot the store’s owner, 44-year-old Allen Hilzendager, three times and made off with several hundred dollars from the cash register.
The question is, which of them committed the shooting? Witnesses who saw the crime from across the street couldn’t positively identify which man they saw leave the store. The third accomplice, Timothy Jordan, would testify that Jones confessed to the shooting. (Jordan later recanted his testimony, claiming police told him what to say in exchange for a lesser charge. Jordan, Dixon and Jones had committed a string of robberies, though the liquor store heist was the only one that involved murder. Jordan was sent to prison for 10 years. Dixon was given a 60-year sentence.)
But Jordan’s testimony wasn’t enough to convict Jones of murder. In Texas, accomplice testimony can’t be the sole basis for a conviction; it must be corroborated by independent evidence.
At Jones’ 1990 trial in rural San Jacinto County, prosecutors offered only one piece of corroborating evidence—the strand of hair recovered from the liquor store counter.
Stephen Robertson, a forensic expert hired by the Department of Public Safety, examined the hair under a microscope—an inaccurate visual analysis that was common at the time. Robertson compared the hair with samples taken from 15 people who entered the store the day of the murder. He testified at trial that he believed the hair matched Jones. But he conceded, “Technology has not advanced where we can tell you that this hair came from that person,” he told the jury, according to court records. “Can’t be done.”
But in 2000, when Jones was fighting for his life, it could be done. On December 6, 2000, the day before the execution, Jones’ attorneys filed a last-ditch motion for a stay—in district court and with the Texas Court of Criminal Appeals—so they could submit the strand of hair for mitochondrial DNA testing. Both courts turned him down.
Jones’ last hope was Gov. Bush, who in December 2000 was embroiled in the Florida recount controversy that followed the presidential election. Bush had already overseen the execution of 151 people during his governorship, but he’d also expressed support for DNA testing. Earlier that year, Bush had granted a 30-day stay to Ricky McGinn so that DNA testing could be conducted on key evidence in the case. (The tests would prove McGinn’s guilt and he was executed.) Bush, explaining his decision in the McGinn case to CNN in June 2000, said, “To the extent that DNA can prove for certain innocence or guilt, I think we need to use DNA.”
But Bush was never told about Jones’ request for DNA testing. Trough a public-information request, the Innocence Project obtained the Dec. 7, 2000, memo that lawyers in the governor’s office sent to Bush, briefing him on the circumstances of Jones’ pending execution. The four-page memo doesn’t mention Jones’ request for DNA testing. Rather, it describes the disputed hair evidence as “testimony from a chemist employed by DPS that the hair samples taken from the crime scene matched those taken from Jones.”
The memo from the general counsel’s office concludes, “At this time, I do not recommend that a reprieve be granted.” Jones was executed a few hours later.
But the strand of hair survived, tucked away in a box in the San Jacinto County courthouse for years.
In fall 2007, the Observer, the national Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed a lawsuit to obtain the hair for DNA testing.
The county district attorney’s office fought release of the hair sample and announced its intention to destroy it. But in June 2010, Judge Paul Murphy ruled in favor of the Observer and the innocence groups, and ordered prosecutors to turn over the remaining hair evidence for DNA testing.
Anti-death penalty advocates had hoped that the Jones case would provide the first-ever DNA exoneration of an executed person. While quite a few death penalty cases have been called into question, including several in Texas, no executed prisoners have been proven innocent by DNA testing, widely considered the most reliable form of forensic evidence.
Instead, Jones' case now falls into the category of a highly questionable execution—a case that may not have resulted in a conviction were it tried with modern forensic science. In that respect, it's much like the case of Cameron Todd Willingham, executed in 2004 for starting a house fire that killed his three children. Fire scientists now say the arson evidence used to convict Willingham was flawed. (The Forensic Science Commission will continue its investigation of the Willingham case at hearing on Nov. 19.)
Still, the revelations in the Jones case raise more questions about how Texas administers the ultimate form of punishment.
“My father never claimed to be a saint, but he always maintained that he didn’t commit this murder,” said Claude Jones’ son, Duane, in a statement released by the Innocence Project. Duane Jones who didn’t know his father growing up and met Claude Jones when he was on death row. “Knowing that these DNA results support his innocence means so much to me, my son in the military and the rest of my family. I hope these results will serve as a wakeup call to everyone that serious problems exist in the criminal justice system that must be fixed if our society is to continue using the death penalty.”

Posted by: Michael R. Levine | Nov 11, 2010 7:01:22 PM

This isn't a case of innocence. It's a case of a technicality in Texas law that, had science been better, would have resulted in a guilty murderer going free.

Hopefully though, cases like this will call out hair comparison analysis which is not exactly reliable.

Sorry Michael. Jones did it, as did Cameron.

Thanks for playing.

Posted by: federalist | Nov 11, 2010 7:55:02 PM

Come on guys, Jones is guilty as hell. He is a poster child for the death penalty. Only eight years in prison for murder in Kansas? What statute is that? Why was he let out? Certainly there was other evidence that tied Jones to the crime. Let's get real.

Posted by: DaveP | Nov 11, 2010 8:06:41 PM

Michael --

I'll be honest. I didn't carefully read the entry because of its length. I will assume, from a light skim, and from its context, that it's the story, or purports to be the story, of a person who was executed who is now claimed to be innocent, and that there is non-trivial evidence, but not proof, suggesting innocence.

The problem is, as federalist implies, that in the end it's just another of the "but serious questions have been raised" cases.

You and I have been litigators long enough to know that it can often be said, with one degree of plausibility or another, that "serious questions have been raised." They were raised in the Roger Keith Coleman case as well. It turned out to be a pack of lies, orchestrated over quite a number of years by those with an agenda, such as the Innocence Project and abolitionist newspapers like the one you quote.

This is the reason I am unmoved by such stories. I am pretty familiar with the truth-producing mechanisms of court (oath and cross-examination among many others), not one of which binds newspapers and advocacy groups. The "raising of questions" by biased entities is no substitute for the judgment of an impartial jury.

But even putting all that to one side, the answer is not to abolish the death penalty in the many cases where the amount of doubt entertained by sane people is zero (and we saw one such case this week). The answer, in the other cases, is to be careful. We are. This is the main reason, underneath it all, that such a small percentage of the people at one time sent to death row actually get executed. The country is aware of human fallibility and fears (too much, in my view) its possible consequences.

It is true that we can eliminate all doubt by abolition. But there will be a price to innocent life there too, and it will certainly and substantially exceed the potential cost to innocent life posed by the minimal risks of the present day DP.

First, the overwhelming bulk of recent scholarship is that the DP deters many murders. But second, even if unwisely you discount that, the HISTORICAL evidence shows that it is the failure to impose the DP, not its carrying out, that costs innocent life. Dozens of people, inside prison and outside (when there is a foolish or erroneous release or escape) have been killed by persons who could legally have been executed but were not, enabling them subsequently to work their lethal craft. The two most notorious cases were that of Clarence Ray Allen, right there in the Ninth Circuit (Judge Wardlaw for a unanimous panel), and serial torture/killer Kenneth McDuff in Texas.

The citizens of our country are not stupid and they are not sadists. They are well aware of the possibility of error (as polling indisputably establishes). They are aware of cost. They are aware that the country is not yet free of racism. But overwhelmingly and for a very long time, they support the DP.

The Petit murders show why. There is no chance of innocence (as in ZERO), no trace of racism, no evidence of defective lawyering, no allegation of prosecutorial misconduct, no nothin'. But there is one thing beyond dispute: The crime was unbelievably inhuman and evil.

A jury of conscientious people, (six of them interviewed here, http://today.msnbc.msn.com/id/26184891/vp/40086300#40086300) concluded that death was the just punishment. With all respect, those of us more distant from the case are required by modesty, if nothing else, to defer to their judgment. We may have gone to law school and have had distinguished careers (at least you did), but not in that case, and not in any case, do we have a claim to moral superiority.

Posted by: Bill Otis | Nov 11, 2010 8:47:16 PM

violence begets violence...and so it goes, spiralling into yet deeper darkness.

The reason given for the death penalty in this case is exactly the kind of thing forbidden as a goal of punishment by the Eighth Amendment. A punishment that we seek solely for revenge, because we want to hurt someone who, whatever they have done, is still human, is repugnant to a civilised society. We will not teach that killing is wrong by killing people.

Now, if it was my family, I would want to shoot the bastard in the kneecaps and then beat him to death with a baseball bat. But that isn't the kind of society we have chosen to have - we make decisions on objective, rational factors, not revenge inspired fantasies or hypotheticals.

Posted by: jsmith | Nov 12, 2010 2:16:39 AM

JSmith: There are far more prison murders than executions. Ending the death penalty gives everyone an absolute, immune license to kill after the first murder. Is that what the left wants?

Posted by: Supremacy Claus | Nov 12, 2010 8:38:24 AM

The left in Italy believes in the death penalty. Unfortunately it is that administered by the Mafia to investigating judges, prosecutors and their families. If caught, the Mafia killer should get just a few years in jail with the comforts of home. Why? The Mafia generates government jobs. The murder victim generates nothing and may rot.

The left will never say the V word.

Posted by: Supremacy Claus | Nov 12, 2010 8:44:03 AM

Was relieved to see this piece is a personal column and not an editorial representing the best thinking of an important newspaper's editorial board. Because its makes-no-sense-but-I'm-for-it-anyway message clearly can't decide what it wants to be when it grows up.

Perhaps the gulf between SC and George should be bridged as was the divide between pro-choice and pro-life forces. Give the lynch mob its due but require SC, Bill, federalist, MikeinCt and like-minded Americans to hold bake sales to pay for it.

Posted by: John K | Nov 12, 2010 9:54:00 AM

John K --

I was thinking of saying, as a startled Bob Schieffer did to David Axelrod, "Is that the best you can do?" But that's not the most apt response. Indeed, even noting your high-handed, cock-sure dismissal of the opinion of an overwhelming majority of Connecticut citizens (75-18) is not the best response. (How did you get to be soooooooo morally superior to sooooooooo many people?).

The best response is that, instead of paying for it with a bakesale featuring your opponents' scrumptious products, we're going to pay for it with YOUR TAXES.

Posted by: Bill Otis | Nov 12, 2010 10:30:29 AM

Supremacy claus, as a practical matter those sentenced to life in prison can be kept in solitary confinement, receive meals via a conveyor belt and be let outside at the touch of a button - some of these measures are already used on death rows across the country. If someone is really so dangerous we have the ability to remove all human contact from them forever.

Posted by: jsmith | Nov 12, 2010 10:32:09 AM

jsmith --

Tell me you and your allies wouldn't be the first ones to launch an outraged Eighth Amendment challenge to the regimen you describe. Please. Tell me.

Posted by: Bill Otis | Nov 12, 2010 10:47:35 AM

SupClose is out of mind

Posted by: claudio giusti, italia | Nov 12, 2010 12:14:07 PM

Bill, you're underestimating the situation. Me and my allies, the United Liberal Left Communist Alliance, are plotting a massive Eighth Amendment challenge to the entire concept of prison. All we want is for everyone to be free, join hands and dance. We laugh in the danger of convicted psychopaths being free to walk the streets. The revenge inspired motive of the death penalty is exactly analogous to the necessity of keeping dangerous people away from the rest of the population and both are equally repugnant to the ULLCA.

Posted by: jsmith | Nov 12, 2010 1:16:36 PM

Restraining the urge to kill dangerous prisoners and freeing them to attend your dance are different things, jsmith.

Posted by: John K | Nov 12, 2010 1:40:53 PM

You know I was being sarcastic, right?

Posted by: jsmith | Nov 12, 2010 1:57:26 PM

jsmith --

I knew. So now maybe you can quit hiding behind sarcasm and give a real answer. Is it not the case that you and your allies would be the first ones to launch an Eighth Amendment challenge to the regimen you describe? If not, why not?

Posted by: Bill Otis | Nov 12, 2010 2:17:27 PM

I thought my comment was perfectly clear and I wasn't 'hiding' behind anything - there is a difference between killing someone for revenge in a hideously expensive process that also carries the risk of executing innocents (Anthony Graves is currently seeking compensation for 14 years spent on Texas' death row for a crime he didn't commit) and putting them in solitary confinement when justified by their danger to others.

I still don't know where my apparent allies are coming from. Do you think that every challenge to a defendant's sentence or confinement gets passed through some kind of executive committee of 'Leftists'? Because I hate to tell you, but that's really not how it works.

Posted by: jsmith | Nov 12, 2010 2:39:20 PM

jsmith --

I don't blame you a bit from wanting to de-couple from your allies.

But you still didn't answer the question. You did not merely propose "solitary confinement." You propoosed a specific regimen including, to quote you (emphasis added), "...receive meals via a conveyor belt and be let outside at the touch of a button...If someone is really so dangerous we have the ability to remove ALL HUMAN CONTACT from them FOREVER."

Would you not attack as an Eighth Amendment violation a sentence in which an inmate was actually deprived of all human contact forever? If not, why not?

And do tell, how, consistent with the Eighth Amendment, can he be deprived of all human contact forever when he has or feigns having a medical problem?

Posted by: Bill Otis | Nov 12, 2010 3:11:28 PM

It's news to me that I was ever 'coupled'.

The conditions I am referring to parallel the conditions that have long been used on death rows throughout the country. Those conditions have not been successfully challenged under the Eighth Amendment nor have they caused problems with treating defendants who have medical problems.

Perhaps you could assist by providing reliable accounts to the contrary?

Posted by: jsmith | Nov 12, 2010 3:17:07 PM

jsmith --

And STILL you won't answer the question. It was not whether the conditions you describe HAVE BEEN successfully challenged under the Eighth Amendment. It was whether YOU WOULD challenge them, hoping to achieve that success. Would you either challenge them or support their being challenged?

Posted by: Bill Otis | Nov 12, 2010 3:29:24 PM

It would depend on the individual case. I wouldn't be happy with a blanket rule that applies as much to felony-murderers who didn't actually kill the victim as it did to serial killers who had killed in a particularly violent manner. But, equally, as I hope is clear from my previous posts, I recognise the fact that some people really are too dangerous to allow them to interact with others.

Posted by: jsmith | Nov 12, 2010 3:37:29 PM

Just in case you need more clarity - in this case I would neither think that confining Hayes to solitary for the rest of his days violated the Eighth Amendment nor would I support a challenge to his confinement.

Posted by: jsmith | Nov 12, 2010 3:42:46 PM

jsmith --

Thank you for the direct answer.

That said, no form of imprisonment is justice in this case. Unlike the Graves case, here no sane person doubts the defendant's guilt. The crime is mind-boggling in its gratuitous cruelty, viciousness and sadism. The defendant has had numerous previous trips to the slammer and has proved that it doesn't work with him.

Neither the citizenry as a whole nor the jury, both of which want the death penalty for this child rapist/killer, are barbarians. So far as I am aware, no one on this blog has made any credible claim to moral superiority, and certainly no one has made or could make a claim to better knowledge of the facts than the jury had. In short, there is no legal, factual or moral basis to condemn the jury's judgment.

Posted by: Bill Otis | Nov 12, 2010 3:58:51 PM

Sure, execute him quickly so everyone can forget what the story is really about. Total incompetent police who set up a perimeter when they should have made a dynamic entry (then there would be no trials and no death penalty needed) and a family living in an area of the US totally oblivious to evil that is around them. Study the facts, you will see the mother and father both failed in their solemn duty to provide a safe home for their daughters who they brought into the world. Followed home; left basement entrance open; mother goes back into house from bank; no firearm in house.

Posted by: Kowman Harsh | Nov 12, 2010 6:39:54 PM

Sorry, jsmith. And to think it was just two days ago I mocked Bill for zooming past the sarcasm in one of my volleys.

Actually I picked up on the sarcasm but figured it was meant to cut the other way...into us liberal, soft-on-crime, commie abolitionists.

BTW, Bill, it appears prison may have "worked" for Hayes pretty much like it works for most inmates...by making them worse when they come out than when they went in.

Posted by: John K | Nov 12, 2010 6:48:41 PM

John K --

"BTW, Bill, it appears prison may have 'worked' for Hayes pretty much like it works for most inmates...by making them worse when they come out than when they went in."

Thank you for providing a reminder of why it would be silly to try mere imprisonment yet again.

P.S. After age 18, it is not up to society to see to it that people refrain from violence. It is up to people to refrain ON THEIR OWN. Do you really not know this?

Not that it really captures things to say that this Connecticut case was merely about "violence." I noted that it was mind-boggling in its gratuitous cruelty, viciousness and sadism.

Do you disagree?

While we're at it, do you disagree with jsmith's position that he would not support an Eighth Amendment attack on a sentence here that would "remove all human contact from [the convict] forever"?

Posted by: Bill Otis | Nov 12, 2010 11:20:05 PM

"...mind-boggling in its gratuitous cruelty, viciousness and sadism."

Exactly how some of us view the death penalty itself.

Though, no, I don't disagree with that characterization of Hayes' crimes.

On the Eighth Amendment question, I guess I'd have to say I'd be opposed to any steps calculated to induce abject misery or -- in the instance of total isolation -- to induce madness.

The state should exhibit considerably more restraint than the soulless killers it quarantines and punishes, which also suggests it shouldn't be in the business of killing people itself. You asked.

Posted by: John K | Nov 15, 2010 1:53:52 PM

John K --

1. Thank you for the direct answer.

2. I agree that permanent solitary would be a violation of the Eighth Amendment.

3. The idea that the DP as administered in this country is vicious and sadistic is incorrect as both a factual and legal matter, see Baze.

Posted by: Bill Otis | Nov 16, 2010 2:52:37 AM

I think we can all make up our minds about whether the death penalty as administered in this country is viscious and sadistic without nine judges telling us. Just because they say it's so does not mean it is so -- they have even been known to flip-flop.

Posted by: = | Nov 16, 2010 5:08:31 PM

= --

"I think we can all make up our minds about whether the death penalty as administered in this country is viscious and sadistic..."

We have and it isn't. Go look at Gallup or any other neutral poll.

"Just because [judges] say it's so does not mean it is so -- they have even been known to flip-flop."

And just because abolitionists say the rest of us are unwashed barbarians doesn't make IT so. On the other hand, to address your other point, I admit that abolitionists do not flip-flop, being too ideological and rigid to do so.

Posted by: Bill Otis | Nov 16, 2010 8:20:09 PM

Apologies for the confusion I caused, I meant "we" to mean individuals. My point was that individuals can make form their own opinion without the assistance of a judge (which was addressing your assertion that "[t]he idea that the DP as administered in this country is vicious and sadistic is incorrect as both a factual and legal matter"). Not everyone agrees with that assertion (no matter if the majority does) -- and that's OK. And please don't suggest again that Baze represents fact - it is inherently opinion.

And to the point about unwashed barbarians, of course you're right. It's an opinion. I cannot imagine ever disputing that. Has anyone ever called you an "unwashed barbarian," by the way? Oh, also, about abolitionists never flip-flopping, I don't know, and I don't care.

Posted by: = | Nov 19, 2010 2:04:08 PM

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