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Friday, December 23, 2011

Mental Illness, the Death Penalty, Law, Morality, and the Messiness (and Wonderful Complexity) of The Human Condition

My original blog post on the three homicide/murder cases I've been following was entitled:

 "SATURDAY, DECEMBER 17, 2011:  Not Guilty by Reason of Insanity or Cold-Blooded First Degree Murder, and Psychiatric Treatment or Death by Lethal Injection: Three Confounding Case Studies: Stephen Morgan, Joshua Komisarjevsky, and David Messinger."

An Anonymous reader posted a Comment which stimulated a long response by me, which I wrote right after I read the Comment, as I sat here, where I still am, in the Dunkin Donuts on South Main Street in Midddletown.  Those of you interested in this topic may find Anonymous's Comment and my reply of similar interest.   Here they are:

Anonymous said...

Hello Bob -- thanks for writing your blog - always find it interesting -- always read it. I work in the mental health field -- in fact, for a time, I worked at Elmcrest. Many folks suffer, under the skin, with untreated emotional disorders, ptsd, neglect, etc. I don't make excuses for those who step over the line of civil and acceptable social behavior. I don't applaud those who don't. I don't make excuses because of 'conditions'. We all come to the planet with lessons to learn, challenges to face, problems to overcome. I hardly know anyone who couldn't qualify under some code in the DSM-TR. In general, I have to say I disagree with capitol punishment, though I acknowledge how satisfying it might be for the family of a victim (and I DO get that). Instead, I can't think of a more permanent punishment than life without any possibility of parole -- and with prisoner rights recreation, access to libraries, computers, television, appeals etc. Now that is a lonely existence that forces 'THOUGHT' and, just maybe, some true penance. We don't have to see it -- it just needs to happen. Let God or the universe judge. What are your thoughts?

Bob Dutcher aka Grandude said...

Good morning, Anonymous (12-22-11 at 5:47 p.m.),
Thank you very much for your substantive Comment. And thank you for reading "Bobs blog."
I've thought deeply about this subject. During the Komisarjevsky trial, I posted a lot of Comments on, especially following the article reporting the death penalty verdict by the jury. My online moniker was "Intrigued Lawyer."
Most of the Commenters following the penalty phase were convinced that there was NO QUESTION that Komisarjevsky should and would get the death penalty. They saw the trial as a farce and pointless. How, they wrote, could anyone think otherwise? How gleeful we would be, they Commented, to pull the switch and let the lethal poisons enter Joshua's veins in the execution chamber. They viewed him as "vermin," to be exterminated the way he killed Dr. Petit's daughters and wife. They predicted the jury would make a decision quickly, since there was no alternative to the jury ordering Komisarjevsky killed by the State.
I made it clear, in all of my responses and comments, that I made no judgment about Dr. Petit wanting Komisarjevsky and Hayes to get the death penalty. How do I know how I would react under similar, unthinkable circumstances. I had only compassion for him, but also hoped, as I've written on "Bobs blog," that Dr. Petit is able, as Job was, in the Old Testament tale, to move from a focus on the horror of life to a search for love in the face of tragedy. Again, whether he is capable of achieving that transition, whether I would in similar circumstances, is unknown. But Job shows it's possible. Elie Wiesel shows it's possible.
Consider Elie Wiesel. He survived the Nazi death camps. He lost family members. He looked evil in the face and, in his novel "Night," he wrote that his faith in God went up in smoke from the chimneys of Auschwitz. But somewhere along the line out of the death camps, Wiesel regained his faith.
When Wiesel spoke at my alma mater, Wesleyan, earlier this year, about the death penalty, he said the State should NEVER kill anyone in retaliation for murder. Hard labor, yes. Imprisonment for life, yes. But never capital punishment. Death is not the solution for death, he intoned.
The Commenters argued from the Old Testament, "an eye for an eye, a tooth for a tooth." That, I suggested, was an argument for proportionality in sentencing. While it can also be seen as a justification for capital punishment, that principle must be reconciled with the even older principle that "Thou shalt not kill." In that Commandment, there is no exception for capital punishment by the State.
Now we are humans, not Gods. We live a mortal life of pleasure, pain, and woe. Our souls are more complex than the Ten Commandments may acknowledge. So we make exceptions to the blanket rule: killing in self-defense is fine; killing in warfare is fine, even celebrated; it's okay for the United States to invade Iraq without justification and cause the death of hundreds of thousands of people, thousands of soldiers, and countless maimed people; it was okay for the United States to unleash the atomic bomb on the world, and the world's subsequent history, at Hiroshima and Nagasaki, because the end justified the means; it was okay for America to firebomb Dresden and Tokyo, because the end justified the means.
In the Komisarjevsky case, the reported that the jurors were in tears because they wanted to find a way to save Joshua's damaged life and still give Dr. Petit the satisfaction of seeing Joshua killed. They could not, so they decided on death.

(Continued in next Comment, due to length limitations of the blog program)

Bob Dutcher aka Grandude said...

(above Comment is continued here)

The jury took four days to weigh the evidence and reach a verdict. This infuriated the angry, enraged mob of Commenters on the Comments section. How, they raged, could the jury be so stupid? How, they ranted, could our justice system be so dysfunctional? How nice, they vented, it would be to pull the switch, to fire up Old Sparky, to see Joshua treated like a bitch by the other prisoners in Somers?
Appalled by their reptilian reaction, which, I Commented, mirrored the reptilian reaction of Joshua Komisarjevsky during the Chestire Home Invasion, I suggested they might, instead, take a different approach. If Lady Justice determines that Joshua must be killed by the State, then let him be killed by the State, by all of us, but we then should ask for God's forgiveness for our own act of killing a creature of God, In Cold Blood. The executioner who pulls the switch to release the killing brew into Joshua's veins will, I hoped, do so with difficulty, with reluctance, and with tears of sadness running down his cheeks. That, I suggested, was the only proper way to possibly reconcile the legal duty to kill the young man with the moral responsibility to refrain from all killing, no exceptions.
The problem with Wiesel's recommendation (death, never; hard labor, forever), and yours, is that we have another moral principle in play in America: the Constitution. The 8th Amendment (no cruel or unusual punishment) has been interpreted in a way which would prohibit some forms of "hard labor" "no recreation, no library access, no computers, no television, no appeals, etc.", as you suggest.
You have raised some VERY interesting and challenging issues. That's why my response has been so long. We've only scratched the surface of this fascinating and enormously complex subject.
I'll leave you with this thought. Our dialogue calls to mind this Zen koan:


I do hope you'll make more Comments on the blog about this or any other issue.

Happy Holidays,

Bob Dutcher


  1. As I see it, the anonymous commenter raises the questions: Should we love and show compassion toward someone who has done a horrible thing? Is Komisarjevsky worthy of our compassion and love? Should we show compassion and love based on the worthiness of the recipient, or should we show love and compassion for some other reason?
    I recognize the swirling emotions of rage and the desire for punishment and vengeance. But if compassion and love are exhibited based on worthiness or some other pragmatic calculation, I believe we are all spiritually doomed on many levels.
    I don't expect ever to meet Komisajevsky, but If I did, I would like to think that I would see him as a wounded, struggling person who was or is possessed by some torment beyond his control. I don't see what I or anyone has to gain by inflicting more pain on him. I don't see how punishing him more will make him a better person or bring him to repentance.
    I can understand and support protecting society from individuals who have done terrible things. I believe we need jails. But if we want to live in a world that embraces and cultivates the virtues of compassion and mercy, then people like Komisarjevsky give us such an opportunity to prove to ourselves that it's possible. That, in turn, makes it possible to believe that we ourselves are forgiven for all our failings, inadequacies, and lapses. Knowing that we are given mercy and compassion is probably the deepest and most important spiritual gift we can obtain. If it is a gift, then it not something we have because we deserved it.

  2. Amen, John Hall. I couldn't say it better or more powerfully. Certainly not more succinctly!

    I agree with your implication that we show compassion as much for ourselves as for The Other.

    I plan to ask Jerimiah Donovan, Joshua Komisarjevsky's lead defense lawyer, if I can initiate a correspondence with Joshua. See the article about the man who did that, with Walter Bansley's blessing (another defense lawyer for Joshua), and received back three letters showing Joshua to be an intelligent writer and talented artist.

    It's interesting to me that we rightfully condemn the activation of the reptilian brain when it's directed to murdering innocents in Chesire, CT, but celebrate it when it's directed to dropping atomic bombs on Japan, or firebombs on Germany, both during WWII, or directed to initiating warfare with countries like Iraq which, like the Petit family, did nothing to deserve the unleasing of those reptilian atomic forces within the human soul.

    We ignore our own complicity in such horrors at our, and the world's, peril.

    Merry Christmas,


  3. Dear Readers,
    I sincerely invite any of you to post Comments disagreeing with Anonymous, John Hall, or me on this or any other issue. Your views are most welcome. Controversy and disagreement is good, and clarifying.


    Bob Dutcher

  4. Well there's a happy subject for the eve before christmas eve...I may have to put that subject on hold. I'm sure you'll enjoy my thoughts and comments...but I want to suppress thoughts like burning at the stake, boiling in oil & chopping off heads (those were the good old days)

    ???? Nah here goes ->

    My thought put live executions on TV on Sunday mornings for vicious murders, such as these. I know murder is a crime of passion, so you won't deter future senseless murders....but hell ....society is out for revenge & entertainment. You do this & the result might be - people skipping church and staying home to watch.

    Heck you could sell commercial sponsorships to cover the state costs of such an enterprise.....Just think....

    Burning at the Stake....? Sponsored by ......
    > Kingsford Charcoal

    Boiling in Oil.....? Sponsored by....
    > Crisco

    Chopping off of head ...? Sponsored by
    > Gillette

    Personally I like the idea of public executions at half time....

    Hows this....You build a large platform to execute the convicted on...

    Make it at the top of a temporary dirt mound....

    Strap them down on an execution table....and when you cut their head off with a hack saw ( a dull one) let their head roll off the table, down the hill....maybe have a dozen numbered & flagged holes at the bottom...which the head might roll into -- get the crowd involved.....let them bet on which hole the head might land in.

    Hell - TAX IT...we'll pay down the national debt in no time, if we did that.

    No thanks necessary Dutch....I'm here to help.

    BTW: If we executed a couple of white collared bankers and lawyers, that help launder drug might be difficult to even buy drugs around schools anymore.

    Hey Merry Christmas !!!!

  5. Dear Anonymous (December 23, 2011 at 9:58 a.m.),
    Thanks for your interesting Comment. Interesting because I'm sure you speak for all of our reptilian reactions to the horrors of murder, warfare, and killing of innocent life by people acting on their own or when engaged in State-sponsored killing, e.g. warfare.

    Trust me when I say that anyone with blood in his or her veins who contemplates the killing of innocent human life in situations like the Dr. Petit case, the Chesire Home Invasion, feels exactly as you have expressed. Your scenario calls to mind Hironymous Bosch's "The Garden of Earthly Delights," in all its vivid horror of men and women torturing other men and women.
    But for many humans, that's just the beginning of the analysis of how to respond to the killing, the murder, the horror of it all. Another response is, as John Hall suggests, compassion, the root of which word is "com" = with, and "passion".
    Being a man of many passions myself, many of them unruly and obnoxious to other people when expressed in my behavior, I have great compassion for anyone who's reptilian passions become out-of-control. I say a prayer to myself, "God, thank you for not putting me in that situation because Heaven only knows how I would react in the same situation, with the same personal history."
    I believe that anyone is capable of doing anything. Think the Germans during the Hitler era who participated in the genocide against the Jews. These were "good" Germans, from the country of Mozart, Bach, and Beethoven, Martin Luther, and all the rest of High German Kultur. How did these good Germans agree to participate in such Evil?
    Thanks for giving concrete form to the emotional, reptilian part of all human beings which is triggered by the horrors inflicted by murderers on their victims. I wonder if there is any part of your soul which recognizes that this may not be the end of your own response process?
    As for the timing of these thoughts, on the eve of Christmas eve, remember that Advent is the time of Darkness which gives way to the Light of Christmas. The horrors of murder and human slaughter are often carried out in darkness. They may also be responded to in darkness. May the light of the Son of Man shine upon all our souls as we contemplate an appropriate, fully-human response to such tragedy. I am not claiming that the non-reptilian, calmer response is the ONLY fully-human response. Perhaps yours is too, but not in my own way of looking at these matters.
    How about other readers?

    Namaste, Anonymous,

    Bob Dutcher

  6. Oh Bobby, don't take my comments seriously. I was pulling your leg (but I'd be willing to bet people would skip church to watch).

    I don't know what the entire cause is, for creating such monsters. It reminds me of the line that one of the 'Jets' makes in West Side story, to Officer Crumpkie. " I'm depraved because I was deprived." Well that may be so, but I have a hard time accepting the fact that when we have to put you away, it costs $65k a year to house some of these remorseless criminals.

    Should we as a society, sanction state murder? We certainly have no problem with it, in the name of war. Even to the extent, we know the wars and blood shed are questionable & unjustified.

    I'm sure you had experience, 'providing equal protection', for those that you know are guilty. I wonder how that makes you feel, when your actions, puts one of them back on the streets, only to have them commit the same crimes again. I know the pat response is..." well the D.A. didn't do his job. " ...and because you did, some one else may have to suffer down the road. // I know in a case of capital punishment, there is no later review, after the sentence is carried out. Also know, that the system has executed quite a few innocents as well. Add the fact that D.A.'s are political animals, and that notch in their gun, bodes well, for further political ambitions. - No easy answer to this....however

    When you have 100% unimpeachable evidence...perhaps DNA to support it. I don't think we should have any qualms removing such people from society.

  7. Hows that for a limbic response?

  8. Dear Anonymous (12-23-11 at 5:59 AND 6:05),
    I thought that part of your original Comment was motivated by playfulness and humor but if you were totally serious I didn't want you to think I wasn't taking you seriously.
    That said, your second Comment of 12-23-11 at 6:05 p.m. is interesting. The limbic system, while more a tradition in neurology than a scientific "fact" was thought to be the seat of the emotions AND long-term memory. That suggests to me that you might want to search your long-term memory for all the times you either violated the law (even speeding) or some other social norm and got away with it. Or are you so squeaky-clean that you've never done anything you've regretted or which has hurt someone else. Once you concede you're not perfectly controlled in your own behavior, you've then conceded, in effect, that you're no different, in kind, than Joshua Komisarkjevsky. It's just a matter of degree.
    What comes to mind here is that old Winston Churchill joke. "Madam," the Great One is said to have asked a young woman, "would you go to bed with me for a million pounds sterling?" "Well of course," she replies. "Well, Madam, would you go to bed with me for a hundred pounds?" To which she responded, indignantly, "NO! What kind of a woman do you think I am?!" "Well, Madam, we've already established that, now we're just negotiating the price."
    You ask a good question, but give a puzzling and unsatisfactory answer. "Should we as a society, sanction state murder? We certainly have no problem with it, in the name of war. Even to the extent, we know the wars and blood shed are questionable & unjustified."
    Are you suggesting that because we have "no problem" with something, the something is justified? That sounds like a prescription for sociopathy, like that of Joshua Komisarjevsky in raping, burning, and murdering the Petit women. Again, this shows that you and Joshua have a moral reasoning process in common: you have "no problem" with unjustified State killing, in warfare, and he had "no problem" (at least in the moment) with unjustified murder. I'm not saying you are any different from me or anyone else, but the overall tenor of our remarks suggests you think you are "better" or "different" or "more human" or "more worthy of living on this planet" than some other people, e.g. Komisarjevsky. I seriously question your premises, your logic, and the apparent coldness of your heart.
    As for times I defended "the guilty," first thing is this. I did so not under the equal protection clause but under the confrontation clause of the constitution and under the long-standing legal tradition that the State must prove the guilt of the defendant beyond a reasonable doubt. From your mistaken appreciation of the source of a criminally-accused person's right to a due process of law and a fair trial, I know you are either not a lawyer or a poorly-educated lawyer. Since even a poorly-educated lawyer would not make that mistake, I infer, reasonably, that you have no legal training. That's not a criticism, just an observation to set the record straight.

    (Because of word count limits, the rest of this Reply Comment is posted below.)

  9. (The above Reply Comment is continued here.)

    A trial lawyer who puts the State through the test of proving guilt beyond a reasonable doubt is in a position analogous to a surgeon who makes no moral assessment of the worthiness of the patient's life before doing everything the surgeon is able to do to save the patient's life, for example a patient brought into an ER who is bleeding to death. Ceteris paribus (all things being equal), the surgeon would save the life of Adolph Hitler or Ghengis Kahn because his duty under the Hippocratic oath is "First, do no harm."
    A trial lawyer who agrees to represent a criminal defendant has the same duty. If the lawyer can't stomach saving the guilty as well as the innocent, he or she should probably do real estate transactions rather than criminal trials. Of course, what's the real estate lawyer supposed to do when Adolph Hitler comes in with a contract to buy the Auschwitz property?
    You suffer from an illusion that DNA evidence can resolve definitively all legal question in criminal cases. It cannot. Even if there is incontrovertible evidence of guilt, is it evidence that the defendant committed murder, or merely manslaughter, or excusable homicide? State of mind is not provable by DNA evidence, although it may be relevant circumstantial evidence of mental state.
    Even if the evidence is unimpeachable that the defendant is guilty of the crime, that will not resolve all the legally significant questions. For example, in the penalty phase of a murder trial, guilt of the crime is only one factor for the jury to consider. The jury is required to consider ALL evidence about the defendant's life before deciding, in a complex algorithm laid out by the legislature, in Connecticut state prosecutions, whether the defendant shall live or die by lethal injection.
    In Connecticut, the cost is $45,000, not $65,000 as you suggest. See
    But that's still expensive. But our jails are filled with non-violent offenders, many of them drug offenders. Why not start by ending the futile "war on drugs" and saving a lot of money and resources which are now being wasted on housing non-violent criminals. I'm not talking about violent drug dealers. For that matter, why not end the practice of invading countries who have done no harm to us, like Iraq? The total cost of the wars in Iraq and Afghanistan is close to a TRILLION dollars. The savings from putting Komisarjevsky to death, and criminals of his ilk, is small change compared to what we spend on unjustified warfare.
    Well, I suggest, with all DUE respect, that your thinking is a bit confused and riddled with mistaken premises. However, I find your Comments most enjoyable to read and respond to, so I hope you continue to "air out" your emotions on "Bobs blog."
    Merry Christmas, my Anonymous reader,

    Bob Dutcher

  10. Hello Bob - I am responding to your response to my comment. The discussion was about capitol punishment. I was not aware that there were protections in the constitution making 'deprivation' of what I would call privileges - i.e. television, computer, etc. illegal. We are one of the last 'civilized' nations (pun intended) who feel morally entitled to execute. And..we often hear the complaint that keeping prisoners alive is too expensive. What do our 'civilized' neighbors across the pond do with individuals who commit crimes so heinous that they cannot live among us? What are their 'rights' during incarceration. Have we, by addressing the issue of cruel punishment in the constitution, actually tied a tight knot at both ends of the stick....leaving things too loose in the middle?

  11. Dear Anonymous (12-27-11 at 4:20 p.m.),
    You've asked an excellent question and made a challenging point.
    First, you ask about the Constitutional rights of prisoners during incarceration. These rights to what you call "privileges," e.g. TV, computer, and the like, are not enumerated in the Constitution. They stem from cases brought by prisoners, and ultimately decided by the U.S. Supreme Court, claiming that the 8th Amendment's prohibition of "cruel and unusual punishment" extends to the "privileges" at issue.
    Second, your challenging point. Your phrase, "leaving things too loose in the middle," is a good way to frame the problem. On the one hand, all Western "civilized" societies, except the U.S., have deemed capital punishment (death) to be uncivilized or "cruel and unusual" forms of punishment. And yet, one would think, we could at least make the prisoner suffer while in prison for life. That was what Elie Wiesel recommended: "Death, never; hard labor, forever." But that isn't the balance we've struck here in the U.S.
    I don't know much about prisoners' "rights" in the other Western societies, but I suspect they're comparable to how we treat our prisoners.
    I just read an opinion piece in the NY Times the other day about the Pennsylvania public defender system I think it was. In the state in question, accused people often do not get good defense lawyers. As a result, people are incarcerated for crimes they probably didn't commit (e.g. murder rather than the more appropriate charge of manslaughter, given the circumstances of the crime), or for longer than they should be going to jail, had they been convicted of the correct degree of the crime. As a result, the article noted, the state in question is spending far more money than it should in keeping people in jail longer than justice truly calls for.
    Another example is non-violent drug offenders, who clog up our jails, which should, in my view, be saved for the truly violent criminals.
    I know I've digressed beyond your interesting Comment into areas addressed by the other Commenter whom I accused of finding more inspiration in his reptilian, limbic system than in his cerebral cortex. Or maybe it was a woman who posted the Comment; I shouldn't have assumed a man would be more likely to be in the grip of such a burning anger.
    I'm glad you're wrestling with these difficult issues, which involve heart-wrenching tragedies and hard-to-answer ethical questions about the proper response to such tragedies.
    All best wishes,

    Bob Dutcher