Connecticut’s death penalty remains abolished

Today, the Connecticut Supreme Court affirmed the abolition of the death penalty in this state, in an extremely contentious and hotly anticipated opinion in the matter of State v. Peeler.

In August 2015, the Court issued a divided 4-3 opinion, ruling that the legislature’s prospective abolition of the death penalty in 2012 rendered the death penalty unconstitutional as to all death row inmates and thus Connecticut could no longer have a death penalty.

A few months later, the State petitioned for reargument, which the Supreme Court denied. In another appeal pending at that time, State v. Peeler – also a death penalty case – the court did grant the State’s request for supplemental briefing and argument.

The crux of the State’s complaint – echoed by Santiago dissenters – was that the Supreme Court based its decision on matters that it did not have the opportunity to brief. This position was supported by some commentators and rejected by others.

The big question that everyone was waiting for an answer to was if the Court would quickly and summarily reverse itself on a major issue such as the death penalty and what that meant for stare decisis in Connecticut. If the Court reversed itself, and with the addition of a new member to the Court held the death penalty constitutional, would that violate the Eighth Amendment’s prohibition against arbitrary and capricious punishments?

Today, the Supreme Court answered all those questions. In a per curiam decision, the Court concluded that Santiago governed and that it should not be overruled. The fact that the majority opinion was per curiam should not fool anyone. There are 5 separate written opinions. The major question was the shuffling of votes and who would vote to do what.

Stare Decisis

Most notably, the Chief Justice, who voted to affirm the death penalty in Santiago, voted to affirm abolition today. Her change in vote was not driven by a sudden realization that the death penalty should be held unconstitutional, but rather her realization that a swift reversal of such a groundbreaking decision so quickly, and based solely on the change in the membership of the Court, would so untenably undermine the legitimacy of the rule of law in Connecticut:

When neither the factual underpinnings of the prior  decision nor the law has changed, “the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Quoting Planned Parenthood of Southeastern Pa. v. Casey.

The Chief Justice correctly noted that the role of the Judicial Branch was to fashion a coherent jurisprudence that litigants and the citizens of the State could rely on. To so swiftly reverse itself on a matter of such critical importance would only serve to undermine its authority and legitimacy as the ultimate arbiter of the law.

Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.

Change in membership of the Court

The Chief, and many others, were concerned with the effect of reversal of Santiago solely because a new member was now on the bench. That new member is Justice Richard Robinson, who took over from Justice Norcott, who voted for – and always has – abolition. To have a vote on so critical an issue of public policy reversed in less than a year simply because one member of the Court is now different, would be the very definition of arbitrary and capricious. Justice Palmer, who authored the abolition decision in Santiago, said as much:

The state now proposes that we reauthorize the  death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different  result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals.

The Chief Justice also noted that three of the Santiago bench were still on the bench when they heard Peeler (Palmer, McDonald, Eveleigh) and all three joined in an opinion today rejecting the State’s arguments. The fourth – Justice Norcott – was always opposed to the death penalty. Thus, the Chief Justice reasoned, had the State presented its arguments the first time around, the outcome would not have been different:

Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released.

To indulge the State and reverse Santiago solely because the makeup of the Court is different by one person is not only arbitrary and capricious, but also renders every opinion ever issued non-binding. All a party has to do is wait for a Justice to retire to re-litigate and rehash issues that were considered “settled.” The legitimacy of the law would never be able to survive such a regular assault.

Addressing the State’s complaints

Justice Palmer, who authored the decision abolishing the death penalty in Santiago, wrote a lengthy concurrence rejecting each argument made by the State. Most notably, he dispensed with the State’s underlying argument that the Supreme Court just did not have the authority to do what it did:

The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ … [T]he state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.’’ (Emphasis omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia, J., concurring). The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting).

The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

More damaging to the State, however, is Justice Robinson’s concurrence. Justice Robinson, the only member of the Court who did not opine on the constitutionality of the death penalty in Santiago, sided with abolition here on stare decisis grounds and much to the disappointment of some, on the grounds that Santiago properly reached and decided the issue of the constitutionality of the death penalty:

Specifically,  I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts.

In other words, Justice Robinson did not agree with the State’s position that the Santiago court exceeded its bounds, as suggested by the Santiago dissenters (including the Chief Justice) and some commentators. Also be sure to read footnote 1, which serves as a wonderful note in support of Justice Norcott and a firm rebuttal of some dubious allegations leveled against his continued participation in Santiago by some.

The end of death

Today, the Connecticut Supreme Court issued its opinion, re-affirming that the death penalty has no place in modern day Connecticut. We shall “no longer tinker with the machinery of death” and our standards of decency have evolved to the point where we no longer consider it humane to execute our fellow men.

That the Court had to do so while the State mounted an unprecedented assault on its legitimacy and its ability to perform its Constitutional function of ruling on the laws of our State will serve only to further strengthen the legacy of this institution and the confidence of our citizenry in the idea that our Court rules not with its heart, but with its intellect and serves not personal opinions, but rather the rule of law.

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