This essay appeared as an editorial in the New Haven Register
They say hard cases make bad law. They're right.
I oppose to the death penalty. I oppose it for many reasons. I oppose it instinctively because it just feels wrong. I oppose it based on the teachings of my Church which tell me it's wrong. I oppose it intellectually because I know that it is not a deterrent; because I recognize the possibility of irremediable error; and because I understand the randomness of its application depending, as it does, on the geographic area of the crime, the personality of the prosecuting authority and other factors.
Those are all good and sufficient reasons.
My instincts, beliefs and thoughts have been solidified recently by watching the mechanics of implementing the extreme penalty. It debases us all. It pushes everyone involved to disturbing extremes of conduct which compromise our values and integrity. We are members of the human race. We are better than this.
What crystallized this for me was a conversation with a media representative, one of the statutorily-required three, who was to attend the execution of Michael Ross. How, I asked, was this person chosen. By lottery was the reply. Essentially the names were placed in a hat and three were drawn. That process, the thought that powerball, roulette and executions involve the same basic process is chilling. We have to be better than this.
I watched as judges and lawyers I know, friends and colleagues, struggle to push concepts and arguments to and perhaps beyond their limits to stop the execution. I watch one of the finest, most honorable judges I know, who, because of the bad fortune of his geographic assignment, must set an execution date on a case with which he has no familiarity.
I see an honorable lawyer, himself opposed to the death penalty, trying to fulfill his sworn responsibility to represent the wishes of his client. I know he was appointed to that task by happenstance because he was in the courthouse when Michael Ross met with the prosecutor ten years ago to withdraw all appeals. I see him pilloried by colleagues who are opposed to the death penalty but who fight daily without a second thought to advance the wishes of their clients whom many believe should be subjected to the death penalty.
I read with pain the transcript of an eleventh-hour proceeding where another judge whom I know, admire and respect desperately, painfully, comes close to, or, in the minds of many does, go over the top in dressing down Ross's lawyer. I read carefully and see the words apparently directed to the lawyer are actually intended for Ross himself so that, at long last he, the condemned, will take a step to stop us from what we are doing. I then watch as others, reacting to that judge, call for an investigation, a Congressional inquiry.
And I realize that but for a scheduling quirk the case would have gone to another judge, perhaps not so inclined, and, but for that, Michael Ross would be dead.
Revenge is not sweet. The death penalty will never bring relief, comfort or even closure. When we watch, chillingly, how it actually happens, how the machinery of execution is influenced by serendipity and happenstance we have to be appalled.
We are human beings. We've got to be better than this. Hard cases may make bad law. They don't have to make people act badly.