In addition to recognizing the seriousness of any decision to take another person's life, the jury must follow Connecticut law, which guides and restrains the jury's deliberations and discretion.
Joshua Komisarjevsky, were charged with four of the eight: murder during the course of a kidnapping, murder in the course of first-degree sexual assault, multiple murders and murder of a victim under 16.
Hayes was convicted of six counts of capital felony, covering all four forms of capital felony with which he was charged. The number of counts exceeds the number of victims because some of the forms of capital felony applied to more than one victim. In addition, he was convicted of three counts of murder, four counts of kidnapping, sexual assault, assault and burglary.
Just as not every murder is a capital offense, not every capital offender is eligible for the death penalty. The Connecticut death penalty law, enacted in 1973, addresses the U.S. Supreme Court's concern that individual death penalty decisions not be arbitrary or capricious, reserving the ultimate punishment for those who particularly deserve it.
Connecticut law, like the law of most states, identifies factors that, if present, disqualify the death penalty. Then, the jury balances aggravating and mitigating factors against each other. Only if the aggravating factors outweigh the mitigating factors may the court sentence a defendant to death. Any capital offender not sentenced to death is automatically sentenced to life without parole.
There are five disqualifying factors: if the defendant was under the age of 18, is mentally retarded, had significantly impaired mental capacity, participated in the crime in a relatively minor way or could not reasonably have foreseen that his conduct would create a grave risk of death. If the jury finds any of these, the defendant will get life without parole.
There are eight aggravating factors, at least one of which must be present. The aggravating factors most often discussed in this case are committing the offense in an especially heinous, cruel or depraved manner; committing the murder during the commission of a felony; and knowingly creating a grave risk of death to someone besides the murder victims.
If there is an aggravating factor, the jury will look for mitigating factors that call for mercy. The statute does not define mitigating factors. The Supreme Court has allowed virtually any evidence relating to a defendant's character, record or the circumstances of the crime — such as intoxication, a history of drug or alcohol abuse, mental health issues, abuse as a child — that could justify a punishment less than death.
The jury answers these specific questions: whether there are disqualifying, aggravating and mitigating circumstances and whether the aggravating circumstances outweigh the mitigating circumstances. If the jury finds unanimously, beyond a reasonable doubt that there are no disqualifying factors, there are aggravating factors and the aggravating factors outweigh any mitigating factors, then the statute requires the death sentence. Otherwise, it's life without parole.
That is not the end. State law provides for a review by the state Supreme Court. The court may overturn the sentence if it was the product of passion, prejudice or any other arbitrary factor or if the finding of an aggravating factor is not supported by the evidence. The Supreme Court has set aside two death sentences under the 1973 law, those of Ivo Colon and Terry Johnson.
If the state Supreme Court affirms the sentence, that is still not the end. The defense may challenge the conviction or the sentence through habeas corpus proceedings in state or federal court, or both. These challenges can take years. And once they are settled, the defendant may turn from the courts to the executive branch. Unlike many states, Connecticut's governor lacks the power to commute death sentences or grant clemency. The governor may delay an execution to give the condemned inmate the opportunity seek judicial review or to apply for commutation by the Board of Pardons and Paroles, which has the sole authority to commute a sentence.
Connecticut has executed only one person under the 1973 law. That was Michael Ross, who abandoned his appeals and announced that he wanted to die. He was executed in 2005. Ten other convicted killers are still on death row, with no executions in sight.
William V. Dunlap teaches constitutional law at the Quinnipiac University School of Law.