Editor’s Note: This story was originally published on March 11, 2021. Read more of CT Mirror’s “Best of 2021” stories here.
In March 2012, six state senators and Gov. Dannel Malloy’s criminal justice point person, Michael Lawlor, visited two prisons: Northern Correctional Institution, a “supermax” prison where the men on death row were incarcerated, and MacDougall-Walker Correctional Institution, the largest maximum security prison in New England.
The goal: to convince lawmakers on the fence — all Democrats — to vote to repeal the death penalty.
The legislature had already sent a bill to end capital punishment to the governor’s desk in 2009, but it was vetoed by then-Gov. M. Jodi Rell. Fast forward three years, however, and the math had changed. Several lawmakers were reconsidering their earlier votes, hesitant to go against the wishes of Dr. William Petit, whose wife and two daughters were murdered at their Cheshire home just a few years earlier, in 2007.
“At every point of every conversation on criminal justice after July 2007, the Cheshire murders were the focal point,” Lawlor said in a recent interview. Now an associate professor of criminal justice at the University of New Haven, Lawlor also served 12 terms in the General Assembly.
Northern lived up to its reputation during that March tour. Lawmakers saw prisoners locked up 22 hours a day in tiny cement rooms, under guard when they moved outside their cells.
At every point of every conversation on criminal justice after July 2007, the Cheshire murders were the focal point. ”
“The totality of the living conditions there, the grimness of the living conditions there, the totality of the grimness of the living conditions, had a profound effect,” former Senate President Pro Tem Donald E. Williams Jr., told the CT Mirror in 2012.
Then the group went to MacDougall. Natural light poured in through the generously-sized windows in the facility’s atrium. Because the senators arrived midday, many prisoners were out of their cells.
To get the senators to a yes on repeal, a compromise would need to be struck: those originally sentenced to die must remain in conditions more akin to Northern than MacDougall.
One of those Democrats was Sen. Edith Prague, D-Columbia, who was in favor of abolishing the death penalty until she met with Petit, who told her a repeal would make it more difficult for prosecutors to get a death sentence for Joshua Komisarjevsky, one of the two men who killed his wife and daughters. “I want to give [Petit] a little ounce of consideration here and that’s my reason at this point in time to not support repeal,” Prague told The Hartford Courant in 2011. “I have to live with myself. I could not for one second cause this family any more stress.”
The trip to Northern, however, assuaged Prague’s doubts.
“I did go to Northern and saw death row and saw how horrible it is there … Spending life in prison without the possibility of parole on death row, in a situation that is just like death row, is very, very, very, severe punishment,” Prague told her colleagues in a Senate floor debate on April 4, 2012, recalling the visit to the Somers prison the previous month. “So – and that was our Amendment ‘A.'”
That amendment would become 18-10b, a statute that requires the Department of Correction to impose severe conditions of confinement on the former death row inmates. The bill created “special circumstances” that would ensure the men would not live comfortable lives in prison, even if they were spared lethal injection.
The Cheshire murders “factored into every second of the death penalty abolition,” said Sen. Gary Winfield, D-New Haven, who was serving in the House of Representatives during the 2012 vote to repeal the death penalty. Lawmakers didn’t want death row inmates — particularly the Cheshire murderers, Komisarjevsky and his accomplice Steven Hayes — “to be able to just roam free in the prisons,” he said. “They wanted them to have restrictive ways of living and all the things that made people feel better about casting a vote in the affirmative.”
It worked. Proponents of ending the death penalty in Connecticut succeeded in 2012, but not until they struck a deal that ensured those on death row would be held in conditions more onerous than the general incarcerated population. Not only did they codify many of the special conditions of confinement for death row inmates, the bill they passed was also prospective, meaning capital punishment would not be sought as punishment for future crimes. But lethal injection would remain a distant possibility for the 11 men on death row at the time, until the state Supreme Court ruled it unconstitutional in 2015.
“I’ve always thought they were the sacrifice so we could all feel better,” said Hope Metcalf, a researcher and clinical lecturer at Yale Law School and the Executive Director of the Orville H. Schell, Jr. Center for International Human Rights, of the fewer than a dozen men who remained on death row when capital punishment was repealed. “Because now Connecticut no longer has the death penalty.”
Malloy signed the bill on April 25, 2012, enshrining 18-10b into statute.
“I don’t think you would have repealed the death penalty if you didn’t make that compromise,” said Winfield.
All seven of the men formerly on death row who are still locked up in Connecticut on special circumstances are at Northern. Joseph Silva, convicted of murder with special circumstances in 2018, is also subjected to those conditions of confinement. Like the others, he remains at the Somers prison.
You’re talking about a prison within a prison. At some point, the question has to not be, ‘What does somebody deserve?’ but, ‘What it is that we should be willing to do to people.’ ”
Last month, DOC Commissioner Angel Quiros announced Northern will close by July 1. He cited the declining number of people in prisons and jails — a decline hastened since the pandemic’s onset — and his “obligation to the tax payers of Connecticut” as the basis of his decision to shutter the supermax. The closure is symbolic to many advocates who see the facility as a monument to a past ethos that the purpose of incarceration is to punish and “break people.”
Now, with Northern’s closure looming, prison officials must decide where to incarcerate the men who had been sentenced to die. Lawmakers, meanwhile, have an opportunity to change the conditions in which they live.
If Richard Reynolds gets his way, they might not have much of a choice.
‘Sentenced to death only’
For the past quarter of a century, Reynolds has been confined alone to a room the size of a parking space, a 12-by-7-foot cell in which he can walk from one end to the other in two and a half steps.
Reynolds was sentenced to death in March 1995 for killing a Waterbury police officer. His sentence was changed to 999 years after the state Supreme Court ruled in 2015 that it was unconstitutional to execute the 11 men who were on death row. Over the next few years Reynolds and most of his peers were re-sentenced to life in prison without the possibility of release. They would still die in prison — but by the passing of time, not by lethal injection.
In an affidavit, Reynolds said that two weeks after the 2015 Supreme Court ruling, prison officials removed the death row signs from the cell doors of those who had previously been sentenced to die. “Nothing else changed,” he said.
Like the other men held under special circumstances, Reynolds has been locked in his cell for up to 22 hours a day since he was sentenced. He hasn’t hugged a loved one for more than two decades, because all his visitors must stay behind plexiglass. He is escorted or monitored if he leaves his cell, which is searched twice a week, and he is transferred to a new cell at least every 90 days. It’s been a quarter of a century since he interacted with any incarcerated people other than those originally sentenced to death.
Reynolds filed a lawsuit challenging the conditions of his confinement in 2013, four years before he was resentenced to life without the possibility of parole.
“Plaintiff was sentenced to death only,” Reynolds scrawled in his original 36-page handwritten complaint. “Not a sentence of death and psycological (sic) torment and solitary confinement.”
U.S. District Court Judge Stefan Underhill, who heard Reynolds’ amended complaint after he was re-sentenced and subject to life on special circumstances status, ruled in August 2019 that the conditions of confinement were unconstitutional. In his 57-page ruling, Underhill observed that the way Reynolds is locked up is “more restrictive than any other form of incarceration available within the State of Connecticut prison system.”
Now 52, Reynolds most likely still has decades of life left in prison.
“Reynolds will never interact with inmates who were not previously on death row, never touch a friend or loved one, and never have another opportunity for meaningful social interaction for the rest of his life,” Underhill wrote.
The law does provide for an annual reclassification of the people incarcerated on the special circumstances status, however.
“Some of the guys in death row would meet those criteria,” said Lawlor, referring to a DOC risk assessment that gauges whether an inmate poses a threat to correction staff or other prisoners. “Which conversely means if they don’t meet those criteria, they don’t end up in those conditions.”
But legal filings by the state in Reynolds’ case make clear prison officials have not moved any former death row inmates off the special conditions of confinement.
We will just manage them as they’re managed now, at a different location. ”
“The defendants are obliged to follow the mandate of Conn. Gen. Stat. §18-10b and there is no provision in the statute for an inmate to be released from this classification,” wrote Assistant Attorney Generals Madeline Melchionne and Steven Strom in a legal filing from Jan. 4, 2019. “That having been said, the defendants cannot read into the future and it is always possible that there could be statutory changes in this regard.”
The state has appealed Underhill’s ruling, leaving Reynolds’ case unresolved.
The closure of Northern later this year, however, puts the state at a crossroads, with at least two possible paths forward.
State officials can keep to the status quo and simply hold the former death row cohort at another prison under the same conditions while they wait for a higher court judge to issue a final decision in Reynolds’ case on whether 18-10b is constitutional. Or, lawmakers can act proactively and pass a law striking 18-10b and change the conditions of confinement for the former death row inmates.
For its part, the DOC said it has not asked lawmakers to make a statutory change. The men will be sent to a similarly secure prison — either MacDougall, Cheshire, Garner or Corrigan — following Northern’s closure.
“We’ll be looking for a location that’s operationally feasible for our staff to manage them,” said Karen Martucci, the agency’s director of external affairs. “We will just manage them as they’re managed now, at a different location.”
It is the second option, however, that offers a chance for the legislature to reconsider how Connecticut should treat people incarcerated for some of the most heinous crimes. It could be a litmus test to gauge whether lawmakers’ thinking has evolved in the nine years since they abolished the death penalty for future crimes, said Winfield.
The Judiciary Committee has raised a bill in this session that would largely end the practice of solitary confinement. That measure’s public hearing could be an opportunity for lawmakers and others to reconsider the special circumstances conditions of confinement, said Rep. Steven Stafstrom, D-Bridgeport and committee co-chair.
“With Northern closing, now is the time to have that conversation,” he said.
Just another inmate
In a deposition for Reynolds’ lawsuit filed with the court in Nov. 2018, former Department of Correction Commissioner Leo Arnone — who also was on the 2012 tour at Northern and MacDougall — said he didn’t believe the 18-10b statute made the prison system more secure.
“This is punishment, that’s why it was built that way,” he said of 18-10b. “This is the way it was designed, to be a punishment for these specific crimes.”
Arnone isn’t the only former DOC commissioner to acknowledge the law wasn’t crafted with security in mind.
“Optimally, you would want to have a situation where you lean on the risk assessment formulas, and then make a determination to place someone based on those formulas,” said Scott Semple, former commissioner of the DOC. “It flies in the face of the formulas that you rely on in terms of how you make decisions on how to manage people. So, no matter what the risk assessment scores say, you have to apply certain standards based on that statute.”
Semple said he anticipated the statute would be found unconstitutional. When he spoke with officials from other states that had abolished the death penalty, they told him they relied on risk assessment formulas and reclassified men formerly on death row accordingly.
“Find me another state that has these types of requirements,” Semple said of 18-10b. “It doesn’t exist.”
Lawlor agrees.
“The real goal was to get rid of the death penalty, and this was the price to pay to get that to happen, in my opinion: putting this language in, knowing full well it may not be enforceable,” Lawlor said.
Most of the men formerly on death row likely would be placed under “maximum security type of oversight,” Semple said, but the DOC lacks the discretion to reclassify the men to a different type of confinement.
Semple said the men filed a lot of lawsuits, but most of them were “low key,” and no more dangerous than other inmates.
“They were definitely people you want to pay attention to,” Semple said, but they don’t generally cause chaos within the prison system.
In his 2018 deposition, Arnone recounted what happened the last time the state abolished the death penalty. In 1972, the U.S. Supreme Court issued a ruling in Furman v. Georgia that placed a moratorium on the death penalty until, four years later, the court ruled capital punishment was constitutional, allowing executions to resume.
Prison officials took the men who had been on death row and “released them to the general population, maximum security only,” he said.
The men’s names were never in the newspaper again, Arnone said, which he found interesting because those on death row were frequently the subject of media reports.
“They were serving life, like 75, 80, 150 other guys, and they became nobodies, just another inmate,” Arnone said, “So they went from a big, you know, a big somebody, to just another inmate.”
The landscape changes
In 2009 — two years after the Cheshire murders — it wasn’t as difficult to sell lawmakers on the idea of abolishing the death penalty. There was momentum nationally and within Connecticut for repeal. New Mexico had abolished capital punishment, and legislators in Colorado, Montana and Maryland came close to getting rid of it, as well.
Legislators had passed a number of criminal justice reform measures in 2008 — changing the rules governing how the Board of Pardons and Paroles functions, mandating the DOC and parole board use a risk assessment tool so they could identify who is high-risk to release, and allowing prosecutors, parole boards and other members of the criminal justice system to share information on cases.
Capital punishment, meanwhile, had been a perennial issue in the state legislature for years.
“The death penalty debate was like a biannual event ever since I got in the legislature, sometimes to make it easier to impose, sometimes to get rid of it altogether,” Lawlor said, who became a state representative in 1987.
Lawlor said there were several arguments in 2009 for repealing the death penalty, but he remembers the most compelling being that capital punishment in Connecticut was “a fraud.” Michael Ross was the first person executed since the 1960s, and he spent the last 10 years of his life working with prosecutors so he could get the death penalty, Lawlor said.
“It wasn’t just all of a sudden people became liberals. It was, ‘It doesn’t work, it can’t work, and there’s no way you can fix it,'” said Lawlor.
Over Petit’s objection, legislators passed the bill and sent it to Rell’s desk. She vetoed it.
The conditions of confinement language was not in the 2009 bill. “Those only were formulated after that visit to the prisons [in March 2012,] where a number of those legislators said, ‘I will only vote to repeal the death penalty if you add some language that makes it clear they won’t ever be in general population,'” Lawlor said.
Malloy took office in January, 2011. During his campaign, Malloy said he would sign a bill repealing the death penalty but as time passed, and the political landscaped morphed, repeal was no longer a sure bet by 2012.
“There’s a magic to that kind of thing. But when you do that thing, strangely enough, the magic wears off,” Winfield said. “And people are now faced with the fact that they’ve taken a certain vote and people are reacting to that vote and all of the things that come with it… the landscape changed, even though the people didn’t really change.”
The Cheshire murders began to take up more and more space in the state’s subconscious. As their trials played out in 2010 and 2011, Hayes and Komisarjevsky seemed to be constantly in the news. While the horrific crime tapped into the primal fears of upper-middle class families who thought they were insulated from random acts of violence, the trials renewed both those fears and public sympathy for Petit.
That sympathy was so strong that when Petit asked legislators not to abolish the death penalty while Komisarjevsky’s case was still pending, they were inclined to listen. His sister, Johanna Petit Chapman, also warned the legislature that abolishing the death penalty for future crimes would lead to the end of capital punishment for all, including the 11 people who were on death row at the time.
Hayes was sentenced to death in November 2010. Prosecutors portrayed him as a sadistic, violent man who abused his brother when they were younger, and who threatened suicide as a way to manipulate jurors to give him a life sentence and spare him from execution.
Jurors spent four days weighing the evidence before determining a death sentence was an appropriate punishment for Komisarjevsky. Superior Court Judge Jon Blue sentenced him to death in early 2012, three months before legislators would pass the bill to repeal the death penalty for future crimes.
Petit later ran for office as a Republican. He won a seat representing Plainville in the House of Representatives in the 2016 election, a position he still holds today.
He declined to be interviewed for this story.
Life in special circumstances
Reynolds was transferred from jail to Northern in 1995 shortly after the supermax opened.
“I have been locked in a concrete cell alone every day for the past 23 years,” Reynolds said in an affidavit in 2018. “I can only communicate with my neighbors by shouting through the vent, and even shouting can be hard to hear over the constant noise in the unit.”
In the same sworn statement, Reynolds noted that he is the special circumstances unit barber. Each month, he cuts other inmates’ hair, giving him about 15 minutes of interaction. But he can only cut the hair of the men in his own unit, and all but two of the men are either bald or don’t leave their cells.
At the time of his deposition, Reynolds said a couple of the former death row inmates have such “severe mental health problems” that they rarely leave their cells.
“Over the last 23 years I have seen many of the other men on death row lose their minds. In some cases, they have attempt [sic] to kill themselves,” Reynolds wrote. “I fear that one day I will lose my mind, too.”
Despite his status as a “special circumstances” inmate, Reynolds’ conditions of incarceration are not unique among prisoners who are held on other restrictive statuses. The DOC will move some of these prisoners to different cells every few months, search inmate’s cells at least twice per week and lock people up in solitary for long periods until they complete special programming.
The difference is that restrictive statuses are internal DOC policies aimed at correcting a behavior; special circumstance status was a law created by the legislature and applied to a specific criminal offense. Reynolds and the other men formerly on death row are never taken off their status — despite the required annual reclassification — due to the state’s interpretation of the statute.
“You’re talking about a prison within a prison,” said Reginald Dwayne Betts, a member of the state’s Criminal Justice Commission and a poet who spent eight years in prison before graduating from Yale Law School. “At some point, the question has to not be, ‘What does somebody deserve?’ but, ‘What it is that we should be willing to do to people.'”
In his 2019 ruling on Reynolds’ case, Underhill said the conditions of confinement for the former death row inmates are unconstitutional because, among other reasons, the legislature retroactively punished these men for their crimes after they had already been sentenced. He issued an order requiring prison officials to give Reynolds more time out of his cell and prohibiting prison officials from segregating him from other prisoners not on the special status.
From the moment the repeal was passed, I felt like it was inexorably leading to this showdown. You can’t simultaneously save someone’s life and then subject them to this kind of torture for the rest of their life. Think about what that’s like as they start to age and one-by one they die off. It’s like a nursing home from hell. ”
Notably, Underhill also prohibited the state from enforcing 18-10b against any inmate being held in a Connecticut prison.
“From the moment the repeal was passed, I felt like it was inexorably leading to this showdown. You can’t simultaneously save someone’s life and then subject them to this kind of torture for the rest of their life,” Metcalf said. “Think about what that’s like as they start to age and one-by one they die off. It’s like a nursing home from hell.”
The DOC began planning for Reynolds’ transition into the general prison population, but the state appealed, putting the transition plans on hold. Reynolds’ attorney, Brett Dignam, Reynold’s attorney and clinical professor of law who worked on the case with law students at Columbia University’s Challenging the Consequences of Mass Incarceration Clinic, argued the case before the Second Circuit Court of Appeals last May. The judges granted a stay, keeping the special circumstances status in place until the case is ultimately decided.
Lawmakers’ options
If the state waits until Reynolds’ case finishes wending through the courts to make any changes to the ways inmates on special circumstances are confined, lawmakers can act now. Stafstrom, co-chair of the Judiciary Committee, noted that the committee has raised the PROTECT Act, which, among other things, would largely end solitary confinement for all people in prisons and jails, including those held on special circumstances.
“Where I stand is, someone’s risk level should not be based on the crime they committed in society but how they comport themselves within the correctional facility,” said Stafstrom, who was not in the legislature 2012 when his colleagues voted to abolish the death penalty.
You know, our families aren’t necessarily out for blood. But after something that’s happened to them, that’s so horrible, they like to know that the person’s life is not comfortable, and that the punishment is making them realize what they did was a horrible thing. ”
Winfield, now a state senator representing New Haven and a co-chair of the Judiciary Committee, said he thinks the legislature has little impetus to take up the issue, since the DOC isn’t asking for a statutory change, and lawmakers haven’t been asked to grapple with the constitutionality of the special circumstances conditions of confinement. Plus, Winfield expects some of his legislative colleagues might feel hamstrung, like they were betraying constituents by proactively voting to change prison conditions for those originally sentenced to die.
“I think oftentimes the reason why the court must act is because the legislature is immobilized,” Winfield said. “Whether we think there’s a value to the legislature acting or not, this is one of those situations where ultimately the courts need to act.”
The PROTECT Act was proposed by Stop Solitary CT. Rahisha Bivens, an organizer with the group and a licensed clinical social worker, said each man’s punishment is their lifelong loss of liberty, not permanent solitary confinement. Barring extraordinary circumstances — a commutation or sentence modification — each of the men held on special circumstances will all die in prison.
“People being confined for the rest of their lives behind bars, in a cell, for most of the day, where they’re never gonna return to society, is punishment enough,” Bivens said. “I think that we underestimate what that’s like for people, and the impact that has on people changing, to whatever degree it’s possible to change, and not have the mentality they had when they committed their crime.”
Some survivors of crime feel differently. Jessica Pizzano, the director of victim services for Survivors of Homicide, Inc., which provides counseling, support and advocacy for homicide victims’ loves ones, said many of the people her organization has supported feel that if someone took another’s life and was sentenced to death, they should be treated differently than other people in prison. Pizzano said those families serve a “life sentence,” too, because of the trauma inflicted upon them.
Pizzano said families ask: what is the inmate’s cell like? How often are they allowed out? Do they have access to a television? Video games?
“It helps them to know that, you know, they’re not in these big beautiful places, that they’re in a cold, dark cell,” Pizzano said. “You know, our families aren’t necessarily out for blood. But after something that’s happened to them, that’s so horrible, they like to know that the person’s life is not comfortable, and that the punishment is making them realize what they did was a horrible thing.”
Connecticut’s creation of the special circumstances status shows the intersection between politics and policy on matters of criminal justice, especially when fueled by a crime as horrific as the Cheshire murders. As the state moves forward with the closure of Northern, however, and considers the fate of its former death row inmates, it must reckon with one inescapable irony.
Even though Hayes and Komisarjevsky are the reason lawmakers created the special circumstances law, they are not subjected to it. Both men were transferred to prisons in Pennsylvania nearly five years ago. As of March 1, according to the Pennsylvania Department of Correction’s Inmate Locator tool, Komisarjevsky is in a maximum security facility; Hayes is in a medium-security prison.
Because they are no longer in Connecticut, neither is being held under the conditions of confinement that Reynolds and the others must endure.