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October 22, 2013

Can a state continue with execution plans for murderers still on death row after repeal of capital punishment?

The question in the title of this post is being considered today by the Connecticut Supreme Court, as explained in this AP article:

The Connecticut Supreme Court [today] plans to take up the appeal of Daniel Webb, who is currently awaiting execution for the 1989 kidnapping and murder of Diane Gellenbeck, a Connecticut bank executive.  Webb wants his death sentence overturned based on the 2012 law that abolished the death penalty in Connecticut, except for those who had already been sentenced to die.

His lawyers argue that the law violates Webb's constitutional rights to equal protection by treating him differently than others charged with similar crimes.   They say it also shows the death penalty is inconsistent with current standards of decency in Connecticut and no longer serves any valid purpose.

Given that many folks (including plenty of liberal-leaning ones) seem to believe that it is not constitutionally problematic to have federal crack defendants still subject to excessively long mandatory minimum prison sentences even after Congress reduced these sentences, I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty. It will be interesting to see if a majority of the Connecticut Supreme Court shares such a perspective (and whether, if it does, federal courts will also reach the same conclusion during inevitable additional appeals).

October 22, 2013 at 01:05 PM | Permalink

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Comments

Good Q

Posted by: Just Plain Jim (Just Another Guy) | Oct 22, 2013 1:13:03 PM

There is no constitutionnal guaranties of in mitius retroactivity.

But the defendants will certainly use "the necessity to constrain the use of the death penalty" line of Kennedy.

Posted by: visitor | Oct 22, 2013 3:17:33 PM

"...I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty."

But surely you know that it was repealed PROSPECTIVELY ONLY, and that the prospective-only provision was a major reason it passed at all, since a decisive number of legislators would not have gone along with repealing the death penalty for the previously-sentenced killers in the Petite triple murder case.

So, no, the prospective-only provision is no more "constitutionally problematic" than, for example, it is constitutionally problematic under the United States Constitution to have Ohio executing convicted killers and Michigan refusing to. Making time distinctions is no more INVIDIOUS discrimination than making place distinctions.

Posted by: Bill Otis | Oct 22, 2013 4:36:23 PM

Does a retrospective application of old law, now revised represent a Bill of Attainder?

Time differences are not equivalent to location differences, since the States are independent sovereign entities, with policies validated by elected officials in a legislature. So England abolished the death penalty. Japan has not. There is no violation of logic or law because each is sovereign.

Posted by: Supremacy Claus | Oct 22, 2013 7:10:43 PM

SC --

"Does a retrospective application of old law, now revised represent a Bill of Attainder?"

The whole point is that old law was NOT revised, nor changed in any way as to those subject to it. A new law, forward-looking only, was adopted.

"Time differences are not equivalent to location differences..."

They are not equivalent, sure, but they have the same effect for Equal Protection purposes, since the EPC forbids, not all discrimination, but invidious discrimination. Unlike, for example, race, differences in time and place do not demark suspect classifications.

Posted by: Bill Otis | Oct 22, 2013 8:01:23 PM

Section 53a-45 is the old law. The language of the new statute at the bottom of this comment agrees with Bill, in Section 4; then Section 5 grants a new hearing to the condemned. The hearing is additional to the standard, automatic appeals. What does that mean?

(Argument of behalf of feminists ahead, requiring fairness credit.)The Fourteenth Amendment uses the word, persons, not black males. The suffragettes sued to get the vote for women in 1880, citing the EPC. The Supreme Court read the minds of the Congress rather than the plain word, person, of the Amendment. They said women could not vote because the Congress meant black men, not persons, as was plain. This is a result of making judgments on invidiousness and rational basis, or on governmental purpose, rather than relying on the plain wording. It took another 40 years, and much agitation to get the vote for women. Bill would you have agreed with the 1880 Court?

Worse scenario. The Thirteenth Amendment prohibits slavery. Had it stated, "from the date effective" and been passed in 1859, it would have prevented our most catastrophic mistake, the Civil War, and resolved the problems of the following 100 years. Would Bill have supported such an application of the Amendment in 1859?

One may avoid such absurd results by applying the standards enacted by the new statute retrospectively, to maintain intellectual consistency. Also isn't universal application of a new law the definition of the word, justice. Is Connecticut doing justice by this exemption?


**************

Sec. 4. Subsection (a) of section 53a-45 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a, as amended by this act, unless it is a capital felony committed prior to the effective date of this section, punishable in accordance with subparagraph (A) of subdivision (1) of section 53a-35a, as amended by this act, murder with special circumstances committed on or after the effective date of this section, punishable as a class A felony in accordance with subparagraph (B) of subdivision (1) of section 53a-35a, as amended by this act, or murder under section 53a-54d.

Sec. 5. Subsection (a) of section 53a-46a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) A person shall be subjected to the penalty of death for a capital felony committed prior to the effective date of this section under the provisions of section 53a-54b in effect prior to the effective date of this section only if a hearing is held in accordance with the provisions of this section.

Posted by: Supremacy Claus | Oct 22, 2013 9:24:49 PM

Thou Shalt Not Kill. Sixth Commandment.
No exception for Y'all Can.

If the People of The Great State of Connecticut kill this man then they will each, in turn, have to given answer at the Pearly Gates before Saint Peter. Don't do this Connecticut. Hell is not a pretty place to live.

Posted by: Liberty1st | Oct 22, 2013 9:49:10 PM

Lib.

10 Commandments were written by Jews. They invented the legal exception and the exception to the exception, not to mention the weasel clause. Do not fall for that ploy that they were written by God on a mountain. That was just excellent marketing of those days.

Posted by: Supremacy Claus | Oct 23, 2013 9:16:34 AM

\\ If the People of The Great State of Connecticut kill this man then they will each, in turn, have to given answer at the Pearly Gates before Saint Peter. Don't do this Connecticut. Hell is not a pretty place to live.” :: “Liberty1st”

Peter Has Nothing To Do with Eternal Judgment; God does.
This is a perversion of Matthew 16:19; see Matt 18:18.

“So then every one of us shall give account of himself to God.”—Rom 14:12

Posted by: Adamakis | Oct 23, 2013 9:48:40 AM

The lawyer from news reports seem to have relied mainly on other arguments but the equal protection argument sounds weak -- what is his argument there? As the OP suggests, prospective reductions aren't novel & this rule seems like a stretch. Does he make a "death is different" claim? What has been the normal practice in other states that ended the death penalty -- how did they deal with the people already on death row?

Posted by: Joe | Oct 23, 2013 12:55:24 PM

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