The American Debate: A death-row opponent: Be still, my heart

Ever since a self-described loser named Steven Hayes went on trial this autumn for the murders of a Connecticut doctor's wife and two daughters, my gut has been warring with my brain.

You may have heard of this case. It makes Truman Capote's In Cold Blood read like a relic of a kinder, gentler era. In the leafy town of Cheshire, Jennifer Hawke-Petit was raped and strangled. Her husband, William, had been rendered helpless in the garage with a baseball bat. Daughter Michaela, age 11, was sexually molested, then tied to a bed. Daughter Hayley, age 17, was tied to another bed. Then the home invaders set the house ablaze, and the girls joined their mom in death.

The details of the 2007 crime were actually far worse. As they surfaced in court, and as Hayes' culpability became nauseatingly clear - he was a codefendant; the other guy gets his turn next year - I found myself rooting hard for the death penalty. Ten days ago, in the aftermath of Hayes' conviction, the judge did indeed sentence him to die, yet I still wasn't satisfied. William Petit had said on sentencing day, "Evil exists in the world, and we came face to face with it," so therefore, I told myself, the heck with lethal injection. I wanted the kind of punishment meted out by the henchmen for Henry VIII.

So said my gut. And I suspect I was not alone, given the persistent landslide popularity of the death penalty. Gallup says that 64 percent of Americans want it; the support percentage hasn't dipped below 60 since 1972. Politicians applaud the death penalty in part because it's the accepted code for "tough on crime."

And any presidential candidate who dares to endorse abolition is committing political suicide. The last one who tried was Mike Dukakis in 1988 - when asked how he'd feel if his wife was raped and killed, he accessed his brain and replied like a lawyer for the ACLU - and that basically put the kibosh on his candidacy.

I also suspect that Dexter, the Showtime series that tonight finishes its fifth season, is popular in part because it indulges the public's visceral revenge fantasies. Dexter Morgan is a "good" serial killer who executes "bad" serial killers; viewers root for him to dole out justice and get away with it. All of which jibes with sociologist David Garland's view that, in contemporary America, one of the prime benefits of the death penalty is "cultural consumption."

But surely the brain warrants equal time. Granted, it's not easy to trump the emotions, even when armed with the best empirical evidence. Yet there's something creepy about the statistics that show that most executions are carried out in only five countries: China, Iran, Iraq, Saudi Arabia, and the United States. In this instance, I'm not so sure we wish to be judged by the company we keep.

Now comes John Paul Stevens, the retired Supreme Court justice, who writes, in the New York Review of Books, that the death penalty is "unwise and unjustified." Stevens once believed that it could be fairly administered, but no longer: "An execution may provide revenge and therapeutic effects. But important as that may be, it cannot alone justify death sentences." Nor does he buy the deterrence argument; as he points out, "death penalty states, after all, have generally higher crime rates than 'abolitionist' ones."

And for every Steven Hayes, there seems to be a Claude Jones. He was a Texan put to death in December 2000 for the murder of a store clerk. He had been convicted on the basis of a hair fragment. His lawyers had wanted to submit the fragment to a DNA test. Request denied, and Jones died. Last month, after many years of litigation, a DNA test was finally run on the fragment, and guess what: it wasn't from Jones' hair. Too late for Jones. And hey, it was already too late in 2004, when the guy who had fingered Jones for the murder recanted his testimony.

This sort of thing happens with enough regularity to sway the intellect. That's what happened to Supreme Court Justice Harry Blackmun, who in 1994 announced that he could no longer support the death penalty; in his words, "The inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants."

I'm a confessed fan of Dexter, and I don't lie awake at night pondering the demise of the 1,233 inmates who have been executed in America since 1976. But then the brain kicks in: What are the odds that some were innocent? Justice Stevens, in his new article, notes that more than 130 death-row denizens have been exonerated and freed since 1973, many on the basis of new DNA evidence, thereby spotlighting "the risk that the state may put an actually innocent person to death."

And I well remember a story that I covered in Chicago eight years ago, when 13 inmates on Illinois' death row were found to be innocent, again thanks to DNA tests. The governor ordered a moratorium on all executions - politically he was able to do this because he was a lame duck - and victims' families went ballistic. I watched them vent at a state hearing, and my gut was with them. But then I went for coffee with death-penalty abolitionist Jane Bohman, who voiced sweet reason: "You don't think our hearts sink when we hear some of this stuff? I want to crawl under my blanket. But we can't allow the legitimate feelings of the families to override concerns about fairness and accuracy in the system."

So which is it, the heart or the head? Thirty-five states, including Pennsylvania, still have the death penalty, and at least 3,261 people sit on death row, typically for decades. My head rightly tells me that the policy is preposterous - for other reasons, too, such as the long-standing racial disparity. But when Steven Hayes' compadre goes on trial next year for setting fire to the Petit girls, I may well need supplementary doses of John Paul Stevens. Presumably, I won't be the only one.

Chat live with Dick Polman at 1 p.m. Monday at www.philly.com

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