Nineteen states, including seven in the last decade, have abolished capital punishment through various legislative and judicial means. Some states have struggled, however, with how to deal with those individuals on death row at the time of the repeal, as many of these repeals are aimed at future crimes only. When Connecticut abolished the death penalty in 2012, it only did so prospectively, with neither the legislature nor the governor commuting the sentences of the 11 inmates on death row at the time of the repeal. The question of whether the state could abolish the death penalty prospectively while leaving these inmate’s death penalty sentences intact thus fell to the Connecticut Supreme Court in the recent case of State v. Santiago (Santiago II), 318 Conn. 1 (2015), which resulted in an unexpected holding that the death penalty itself, as a whole, is unconstitutional under the state’s constitution. This case represents a watershed moment in the death penalty repeal movement, but, as the dissents assert, it has the potential to be seen by some as a brazen example of judicial activism.
The Prospective Legislative Repeal
In 2012, Connecticut enacted Public Act 12-5 (P.A. 12-5), An Act Revising the Penalty for Capital Felonies, which abolished the death penalty for “crimes committed on or after” April 25, 2012, the date of passage. During the open discussion of the act, repeated assurances were made that there would be no retroactive application for anyone who was currently on death row, which consisted of 11 inmates, including two inmates responsible for the horrific 2007 Cheshire home invasion and rape and murder of a woman and her two daughters. Others, including Chief State’s Attorney Kevin T. Kane, expressed concern that the prospective-only repeal would violate the state constitutional prohibition against cruel and unusual punishment. Nevertheless, the act was signed into law.
Just over two months after the State enacted its prospective-only repeal, the Connecticut Supreme Court upheld Eduardo Santiago’s conviction for murder but reversed his death sentence and remanded the case for a new penalty hearing. State v. Santiago (Santiago I), 305 Conn. 101, 308 (2012). Santiago’s attorneys immediately filed a motion for reconsideration in which they asked, in relevant part, for the Supreme Court to consider whether the prospective repeal of the death penalty “leads inexorably to the conclusion that capital punishment has ceased to comport with state constitutional requirements.” Santiago II, 318 Conn. at 10. The court granted the motion, and following additional briefing, oral argument was heard on April 23, 2013.
A Court Divided
On August 25, 2015, after many months of anticipation, the Connecticut Supreme Court released its decision in Santiago II. In a 4–3 vote, the deeply divided court held that the death penalty violates the state constitution’s prohibition against cruel and unusual punishment. Justice Richard Palmer summarized the majority’s position as follows: “Upon careful consideration of the defendant’s claims in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.” Id. at 22–23.
Majority opinion. In reaching this holding, the court reviewed the “scope, nature, and history of the protections from cruel and unusual punishment afforded by article first, §§ 8 and 9, of the constitution of Connecticut, both as a general matter and as applied to capital punishment in particular,” before concluding that “in view of the adoption of P.A. 12-5, and the state’s near total moratorium on carrying out executions over the past fifty-five years, capital punishment has become incompatible with contemporary standards of decency in Connecticut and, therefore, now violates the state constitutional prohibition against excessive and disproportionate punishments.” Id. at 15. As Justice Palmer noted,
[o]ver the past fifty-five years . . . during which thousands of murders have been committed in the state, our criminal justice system has conducted but a single execution, and that only after the condemned man all but forced the state to carry out his sentence [by waiving his right to further appeals and habeas remedies]. . . . The eleven men currently on death row in Connecticut are, at the least, many years, and most likely decades, away from exhausting all of their state and federal appeals and habeas remedies. Even if the legislature never had enacted P.A. 12-5, if past is prologue, there simply is no reason to believe that any Connecticut executions would be carried out in the foreseeable future.
Id. at 58.
The majority also conducted an examination of whether executing those individuals who committed capital felonies prior to the enactment of P.A. 12-5 would serve any legitimate penological purpose. Id. at 86–87. The court recognized that
[c]riminal penalties may be imposed (1) to deter the perpetrator and others from committing crimes (deterrence), (2) to punish the perpetrator and give voice to the moral outrage experienced by the victim and society at large (retribution), (3) to prevent the perpetrator from committing additional offenses (incapacitation), or (4) to transform the perpetrator into a better, more law-abiding citizen (rehabilitation).
Id. at 87.
The court reasoned that “if capital punishment is to be morally and legally justified, it must be based on the deterrent or retributive value of executions.” Id. at 88. With respect to deterrence, the court, after considering the historical context, found that “in light of the passage of P.A. 12-5, and in the absence of any indication that the death penalty, as administered in this state, has forestalled the commission of capital crimes, it is apparent that capital punishment no longer serves any meaningful deterrent function in Connecticut.” Id. at 95–96. Similarly, with respect to the question of retribution, the court looked to the “legislative judgment that capital punishment no longer serves a necessary moral function” in Connecticut, examined the lengthy delays in carrying out capital sentences that “do not just undermine the death penalty’s deterrent effect [but] also spoil its capacity for satisfying retribution,” and scrutinized the “ever present danger of irreversible error” in the carrying out of capital judgments. Id. at 97–115. The court concluded that “[t]o the extent that the population of death row has been chosen on grounds other than the atrocity of the offenders’ crimes, this would undermine all confidence that capital punishment, as applied, is morally proportionate and serves a legitimate retributive function in Connecticut.” The court also strongly denounced the vengeance that underlay the purpose of enacting the death penalty prospectively only, noting that “[t]here is every indication . . . that P.A. 12-5 was crafted primarily to maintain the possibility of executing two particular offenders—the much reviled perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire’s Petit family” and that “[t]here is certainly no question what motivated one state senator, who opined that ‘[t]hey should bypass the trial [in the Cheshire case] and take that second animal and hang him by his penis from a tree out in the middle of Main Street. . . .’” Id. at 117–18. The Court thus concluded:
In prospectively abolishing the death penalty, the legislature did not simply express the will of the people that it no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment. Public Act 12-5 also held a mirror up to Connecticut’s long, troubled history with capital punishment: the steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate penological purposes; the freakishness with which the sentence of death is imposed; the rarity with which it is carried out; and the racial, ethnic, and socio-economic biases that likely are inherent in any discretionary death penalty system. Because such a system fails to comport with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently applied, violates the constitution of Connecticut.
Id. at 139–40.
Dissenting opinions. The three dissenting justices vehemently disagreed with the position taken by the majority, asserting that it had substituted its own judgment for that of the elected officials who enacted P.A. 25. Chief Justice Chase T. Rogers, in her dissent, asserted that the majority’s constitutional analysis was “fundamentally flawed.” Id. at 231 (Rogers, C.J., dissenting). Specifically, she noted that despite engaging in an extensive discussion of the ancient history of the death penalty, the majority failed to identify anything in Connecticut’s “distant past” that would remotely support the conclusion that there “has ever been a societal consensus in this state that the death penalty is an inappropriate punishment for the most heinous murders,” thereby rendering its reliance on historical discussion irrelevant to the question at issue. Id. She also accused the majority of considering (and relying on) facts and arguments not raised, briefed, or addressed by either party, and of “disregard[ing] the obvious: [that] the legislature, which represents the people of the state and is the best indicator of contemporary societal mores, expressly retained the death penalty for crimes committed before the effective date of P.A. 12-5.” Id. at 231–33. Accordingly, she concluded that the “majority’s determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.” Id. at 233.
Another dissent, written by Justice Peter T. Zarella and joined by Justice Carmen E. Espinosa, similarly protested the majority’s “unorthodox reasoning” and expressed concern that the majority “usurps the legislature’s power to define crimes and establish punishments.” Id. at 343–84 (Zarella, J., dissenting). Justice Zarella accused the majority of having an unsupported and narrow-minded view of the potential reasons behind the initial passage of P.A. 12-5, noting that “[i]f the legislature, as the majority claims, had rejected the death penalty only on the ground that it is barbaric, excessive, arbitrary and discriminatory, then why would it have enacted a retention provision specifically allowing executions to go forward for all current death row inmates, and why would it have permitted future arrests, indictments, the commencement of trials, and executions to be carried out with respect to those who had not yet been charged with a capital crime but who had committed such a crime before the effective date of [the revised law]?” Id. at 382–83.
Justice Espinosa wrote a separate dissent as well, attacking the majority’s logic and asserting that its decision
continues this court’s unwarranted and unconstitutional expansion of its power, this time by usurping the role of our legislature, undermining the rule of the people and legislating from the bench in violation of the separation of powers. Using the guise of a contemporary standards analysis, today’s majority tosses aside the moral standards held by the people of this state, as expressed through their legislature and their juries, and it imposes its own beliefs about what punishment should be appropriate for the worst criminal offenders in this state. In effect, the majority elevates itself to the ultimate political branch in our democracy with the power to impose its policies on the people—a result that is especially paradoxical when one considers that none of the members of this court were put here through a popular election. Importantly, however, because the majority opinion has grounded its decision on the conclusion, albeit incorrect, that the death penalty no longer comports with evolving standards of decency, the legislature has the power to reenact the death penalty.
Id. at 389–90 (Espinosa, J., dissenting).
Following the release of Santiago II, the state’s attorney immediately filed a motion for argument and reconsideration, which was denied on October 7, 2015. In a surprising move, however, the three dissenting justices in the original decision issued another scathing dissent to majority’s denial of the motion, with Chief Justice Rogers writing that by denying the motion, “the majority merely reconfirms my belief that it has not engaged in an objective assessment of the constitutionality of the death penalty under our state constitution. Instead, the majority’s conclusion that the death penalty is unconstitutional constitutes ‘a judicial invalidation, without constitutional basis, of the political will of the people.’” State v. Santiago, 319 Conn. 912, 920 (2015) (citations omitted).
As Justice Zarella and Justice Espinosa alluded to in their dissents, however, the majority’s holding in Santiago II does not necessarily spell the end of the court’s analysis of the death penalty in Connecticut. State v. Peeler, No. SC 18125, raises similar issues regarding the validity of the death penalty under Connecticut’s constitution, and a decision has yet to be issued by the Connecticut Supreme Court. Moreover, in an unexpected turn of events, on the same day that the court denied the state’s motion for argument and reconsideration after Santiago II, it granted the state’s motion for permission to submit supplemental briefs in Peeler, with oral argument heard by the court on January 7, 2016. Yet another death penalty case, State v. Hayes, No. SC 18782, could soon be before the court as well. While one cannot read too much into these orders, appellate lawyers would be wise to continue to focus their gaze on Connecticut as it continues to highlight the constitutional quandaries associated with the implementation of prospective death penalty repeals.
Keywords: litigation, appellate practice, death penalty, repeal, Constitution, Connecticut Supreme Court
Jessica A.R. Hamilton is an associate with Robinson & Cole LLP in Hartford, Connecticut.
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