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April 14, 2012

"With repeal of state death penalty, death row questions arise"

The title of this post is the headline of this effective local piece out Connecticut spotlighting a number of the legal issues that will be sure to clog up Connecticut's state and federal courts in the years to come.  Here are exceprts:

It will be about 10 days before the bill repealing Connecticut's death penalty gets written into its final form by non-partisan legislative staff, then gets shuttled to the Secretary of the State, who will present it to Gov. Dannel P. Malloy.

And around the time ink dries on his signature, the first appeals from the state's 11 death row inmates could be filed -- depending on the tactics of defense lawyers -- to have sentences reduced to life without the possibility of release. "Some lawyer, in short order, should be making an equal-protection claim," said Leonard M. Crone, president of the 300-member Connecticut Criminal Defense Lawyers Association. Even though the legislation was written to make sure those on death row would not be spared execution, once it is adopted, the issue could add another layer of appeals that may further delay death penalties, which already take decades to enact....

[T]here is a pending state Supreme Court decision that could result in a declaration the death penalty itself in unconstitutional. Another case, which has been delayed for years but is set to start later this spring in Rockville Superior Court, will take up the issue of racial disparity in the state's death penalty process. Six of the 11 people on death row are black....

Michael P. Lawlor, undersecretary for justice policy in the state Office of Policy and Management, said Thursday that the reaction from defense attorneys in the state may be more subtle, particularly with many years of traditional appeals ahead of the death-row inmates. "The whole notion of the Supreme Court throwing out the death penalty is not what the law says," he said, stressing that the court traditionally draws a sharp line when new laws exclude those being punished under older statutes....

Malloy on Thursday acknowledged that death row inmates are all in various stages of appeals on other issues. "As you know we have not put a person to death who didn't volunteer for it," Malloy said, citing that both Ross in 2005 and Joseph Taborsky in 1960 chose to end appeals and meet the executioner. "Some of those appeals that go to the fundamental purpose of the statute, which will be changed," Malloy said. "So what happens in those cases I can't tell you."

Senate Minority Leader John McKinney, R-Fairfield, who led opposition against the repeal, said Thursday the way he understands the law, death-row inmates would not have to exhaust traditional appeals before filing constitutional appeals to win life in prison. "Once the governor signs the bill, there is a question as to whether the court would like to breach that issue prior to exhausting appeals," he said, noting that the issue might not be "ripe" in the eyes of the high court.

"Lawyers prefer not to do anything before it's necessary, so the more time the state is without a death penalty, the better the argument may be not to execute one of the 11 on death row," McKinney said. However, he predicted that now, those on death row will never pay the ultimate price for their crimes.

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Comments

Again, my perennial question: Does the absence of the death penalty create a situation where plea bargains are significantly affected?

For instance, a murderer may plea to life without parole to avoid risking a death sentence. But in states without capital punishment, life without parole BECOMES the harshest punishment available. To that end, either the case would have to go to full trial, or a plea can be done for, say, 25 to life, which would represent the next lowest level that could reasonably be plead.

My point is that capital punishment is used just as readily, if not more readily, to streamline LWOP pleas. Any thoughts on this?

Posted by: Eric Knight | Apr 15, 2012 4:20:07 PM

In my jurisdiction, it's sometimes used to streamline manslaughter pleas. (I.e., a farcical capital charge is filed based on some evidentiary figleaf to meet the intent/"capitalizing" elements, designed to exist just long enough to scare the crap out of the defendant and get him to take a plea.) So, yes, there may be some effect, but I would not assume it is all negative (i.e., losing the leverage to extract time-saving and equitable LWOP pleas).

Posted by: Anon | Apr 16, 2012 2:48:44 AM

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