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August 13, 2015

Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition

The Connecticut Supreme Court today finally resolved, via a split vote, what is to become of the other capital murderers on te state's death row in the aftermath of the legislative repeal of death penalty back in 2012. Here is the lengthy paragraph that starts the lengthy marjority opinion in Connecticut v. Santiago, No. SC 17413 (Conn. Aug 13, 2015) (available here):

Although the death penalty has been a fixture of Connecticut’s criminal law since early colonial times, public opinion concerning it has long been divided.  In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No. 09-107 (P.A. 09-107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date.  Then Governor M. Jodi Rell vetoed P.A. 09-107, however, and it did not become law.  Three years later, in 2012, the legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts 2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dannel P. Malloy signed it into law.  During the public hearings on both P.A. 09-107 and P.A. 12-5, supporters argued that the proposed legislation represented a measured and lawful approach to the issue.  Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment.  Perhaps most notably, Chief State’s Attorney Kevin T. Kane, who serves as this state’s chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass constitutional muster.  Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a "fiction" and that, "[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a matter of constitutional law . . . . [A]ny death penalty that has been imposed and not carried out would effectively be nullified."  In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abolish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capital crimes before that date.  Upon careful consideration ofthe defendant’s claims in light ofthe 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.  For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.

Over at Crime & Consequences, Kent has this post in reaction to the Santiago ruling titled "A Broken Promise In Connecticut."

August 13, 2015 at 03:21 PM | Permalink

Comments

Could it be that Cruel and unusually horrific crimes deserve cruel and unusual punishment?

Posted by: Cindy Renn | Aug 13, 2015 3:57:27 PM

Bill Otis being Bill Otis: "Lying is the main deal with these people. They hold themselves out as the essence of refinement while they lie to your face."

This sort of tone led to some pushback on this blog, at times leading to some pretty negative remarks. If a side allegedly is "mainly" about "lying," they might take a certain amount of offense. Even when a person sort of agrees with such strong language, they tend to in mixed company temper their remarks some. Eventually, this comes off an instigation and being upset when the response is really negative is a tad fatuous.

Note as well Bill Otis was a prosecutor. Not all prosecutors have such a negative view of the defense bar as he, but as I noted here in the past, I'm not really surprised such is his sentiment. Dare I say "bias" as the defense side has their own. Finally, I realize some agree with him. And, I'm not shocked by this or something. Nor am I suprrised the conservative advocate who KS finds the result is "bizarre, twisted logic."

I'm just trying to be real here, especially after a few were so upset at the treatment Bill Otis received here. I'm not worry about his ability to give as good as he got.

---

Anyway, since KS at one point cites poll data on what the people wanted (not that this is some sort of simple plebiscite), looking at his link, there was a question: "If Connecticut abolishes the death penalty, do you think those who have already been sentenced to the death penalty should still be executed or not?" 35% said "no" and 7% wasn't sure. Something, especially within margin of error, 2 of 5 think is the proper path here when deal with heinous murderers is pretty telling on how "bizarre" the result is.

Posted by: Joe | Aug 13, 2015 4:49:02 PM

Bill Otis being Bill Otis: "Lying is the main deal with these people. They hold themselves out as the essence of refinement while they lie to your face."

This sort of tone led to some pushback on this blog, at times leading to some pretty negative remarks. If a side allegedly is "mainly" about "lying," they might take a certain amount of offense. Even when a person sort of agrees with such strong language, they tend to in mixed company temper their remarks some. Eventually, this comes off as instigation and being upset when the response is really negative is a tad fatuous.

Note as well Bill Otis was a prosecutor. Not all prosecutors have such a negative view of the defense bar as he, but as I noted here in the past, I'm not really surprised such is his sentiment. Dare I say "bias" as the defense side has their own. Finally, I realize some agree with him. And, I'm not shocked by this or something. Nor am I surprised the conservative advocate KS (who is directly on the losing side here, looking at the opinion) finds the result "bizarre, twisted logic."

I'm just trying to be real here, especially after a few were so upset at the treatment Bill Otis received here. I'm not worried about his ability to give as good as he got. Just a comment about a major advocate, one so noteworthy he was profiled in a major magazine recently, as recently addressed here.

---

Anyway, since KS at one point cites poll data on what the people wanted (not that this is some sort of simple plebiscite), looking at his link, there was a question: "If Connecticut abolishes the death penalty, do you think those who have already been sentenced to the death penalty should still be executed or not?" 35% said "no" and 7% wasn't sure. Something, especially within margin of error, 2 of 5 think is the proper path especially when dealing with heinous murderers not being executed after being sentenced to die is somewhat telling on how "bizarre" the result is.

[sorry for the near duplicate; posted too soon]

Posted by: Joe | Aug 13, 2015 5:03:08 PM

ICCPR Article 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

Posted by: claudio giusti | Aug 13, 2015 6:07:02 PM

There are so many things wrong with this decision--and Joe, I think Kent was talking about the bizarre "reasoning" of the court.

The judges have earned the white-hot hatred of victims' families.

Posted by: federalist | Aug 13, 2015 7:28:03 PM

"Today is a somber day where our focus should not be on the 11 men sitting on death row, but with their victims and those surviving family members. My thoughts and prayers are with them during what must be a difficult day."--Dannel Malloy.

Spoken by a 'rat politician. What is it about 'rat politicians and capital murderers? The 'rat bastard got what he wanted, and decides to invoke victims' families. This bastard has no decency.

Posted by: federalist | Aug 13, 2015 7:37:24 PM

Here's a blast from the past:

"Like Prague, Sen. Gayle Slossberg, D-Miford, said she has spent many sleepless nights wrestling with the moral implications of capital punishment. "Does a moral society execute people?'' she asked. "Haven't we then become the evil we're trying to eliminate?"

How dumb is this Democrat?"

Joe lamely tried to defend the 'rat by asking whether I thought the Pope was dumb for saying capital punishment was evil. Of course, an opinion that the death penalty is evil isn't stupid (misguided perhaps)---but asking plaintively whether capital punishment is as evil as murder is something so stupid only a 'rat politician bent on saving capital murderers could say.

Posted by: federalist | Aug 13, 2015 7:48:50 PM

That means that the murderers who raped and killed that doctor's wife, and beautiful little girl, and burned down the house while they were still alive, they can breathe a huge sigh of relief. As their victims could not.

I support a direct action group of victims and their families to bring the lash to the lawyers in the legislature and all their pro-criminal collaborators. All should be living on the run as Saddam Hussein did, driving from apartment to apartment in an old Nissan cab, cooking rice in his underwear in his spider hole.

No pro-criminal lawyer should be allowed to live with a moment free of fear. Hunt them, lash them, tie them to a tree outside the legislature. To deter.

Posted by: Supremacy Claus | Aug 13, 2015 10:21:59 PM

Joe. You are a collaborator.

Posted by: Supremacy Claus | Aug 13, 2015 10:23:28 PM

claudio giusti. Buffone.

Posted by: Supremacy Claus | Aug 13, 2015 10:36:06 PM

Bill Otis separately informed me that my first comment didn't go over well.

My comment is basically a follow-up to this thread:

http://sentencing.typepad.com/sentencing_law_and_policy/2015/07/taking-stock-of-the-tough-on-crime-crowds-resolute-oarsman-pulling-with-all-his-might-against-the-cu.html#comments

Note there that I opposed vitriol (though some of it on a human level is understandable given to various things that rubbed people the wrong way -- see comments there from more than one person, voicing their opinion respectfully) and attacks on family was "obviously" off base. Strong back and forth, however, again is something he can give ("liars" etc.) and get.

Posted by: Joe | Aug 14, 2015 1:11:49 AM

did Supremacy escape from the madhouse ???

Posted by: claudio giusti | Aug 14, 2015 6:53:47 AM

An Empirical Evaluation of the Connecticut Death Penalty System Since 1973
Donohue, John J., An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? (July 21, 2014). Journal of Empirical Legal Studies, 11:4, December 2014. Available at SSRN: http://ssrn.com/abstract=2470082
This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.

There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder - a multiple victim homicide - a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.

Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’” For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.

Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.

Posted by: claudio giusti | Aug 14, 2015 6:56:04 AM

I doubt the lawyers for the inmates were the same ones making promises to the legislature. If Otis wants to make that charge, he needs to point to actual words spoken by the actual lawyers for the inmates telling the legislature that they wouldn't make this claim. Plus, any lawyer who made such a promise and felt bound by it could not have ethically represented the interests of the existing Death Row residences. That would be a massive conflict.

And while two years is a really long time for an opinion to be issued, it's not unheard of. I had a magistrate judge take that long to issue a report and recommendation in a non-capital habeas case. And here, six justices issued six lengthy opinions, all of which respond to each other. So this case probably had many rounds of drafting and counter-drafting because each justice wanted to make sure he or she responded to everything written in the other five opinions, and then had to respond to the responses, and then respond to the responses to the responses, etc. The case also could have flipped--the justices initially voted to reject the claim 4-3, but then one justice changing his or her mind. That can delay a decision greatly. Finally, it's not necessarily the majority that delayed this case. Dissenting judges can often hold up the issuance of a decision.

Posted by: Stephen Hardwick | Aug 14, 2015 8:11:19 AM

Claudio. One may not carry out a regression analysis on such a small number of cases. Your article has no statistical validity.

Posted by: Supremacy Claus | Aug 14, 2015 8:38:20 AM

Assume Claudio's cited article has good validity and measures a valid cultural effect. Kill a black, no death penalty. Kill a white, death penalty. It implies the undervaluation of black victims, not the over-valuation of white victims.

That article supports the passage of mandatory guidelines for the death penalty as much as it supports the racial discrimination idea. If a murder meets some heinousness threshold, the death penalty should be color blind and imposed more often on the murderers of black victims. To make it fair.

Posted by: Supremacy Claus | Aug 14, 2015 9:06:39 AM

Joe, given the breathtaking dishonesty of the DPIC's so-called "Innocence List" and facile dishonesty of a jerk like Hickenlooper, we're justified in calling the movement dishonest. And that's not personal--it's not directed at anyone here. I think Dannel Malloy is a POS for invoking the difficult times victims' families are going through. He helped to cause it, and now he's using their pain. There aren't words to describe how low that is. If you cannot see that, well, either you're blinded by ideology or you're not too bright.

I can call you a hypocrite--you whined about Bill not addressing every point--but you slink away when you get called out.

Yes, this is a sharp post--but does it justify calling me a Nazi?

Posted by: federalist | Aug 14, 2015 9:19:26 AM

A few comments ...

Some victims are against the death penalty. Do they count? Are they "collaborators"? Ted Kennedy is a prime case here. Two of his brothers were murdered. He was against the death penalty. Another local case comes to mind. Elderly man murdered. His brothers split on if it was proper to execute him. Appeals to victims. What ones?

Godwin's Law being met generally means your argument is in trouble.

KS made various arguments & one cited public opposition to the result. But, poll data cited by one of his posts shows around 2 of 5 people (and again, this is not merely a plebiscite; large numbers support patently unconstitutional things in many cases) didn't think the existing residents of death row should be executed. This division is but a data point, but it shows the complexity of the issue that led to a closely divided court.

I commented in the past thread (linked above) that various critics of Bill Otis warranted an answer. This would provide a good back/forth on the subject discussed. But, there is no "right to reply" obligation on a blog post. So, like I told Bill Otis separately, I am not that upset that he or someone else doesn't feel obligated to reply. Some don't spend much time worrying about a comment and at times don't even see questions and comments. And, sometimes, just stating your opinion is enough imho without an extended debate. So, no, with respect, did not "whine" about Bill Otis or anyone else not addressing a point.

As noted, I realize some agree with Bill Otis' opinion and I have seen such language and stronger elsewhere regarding opinions I agree with too. Not a big fan of such things myself (e.g., verbal spittle against religious opinions that I find distasteful) though up to a point I understand the human sentiment that leads people to call others "POS" etc.

Posted by: Joe | Aug 14, 2015 10:40:53 AM

Joe, we've discussed the fact that some victims' families oppose capital punishment--the issue, of course, is yanking the rug out from those who want to see justice done (i.e., execution). Malloy was integral in causing pain to those who went through the DP sentencing process, and now he's invoking their difficult time in his little statement. If you can't see the plain evil in that, well, I don't know what to say. I'm sure Dr. Petit doesn't f'in want Malloy's sympathy or even thoughts. Malloy isn't sorry he helped to make his life more difficult and is, in fact, glad about the thing that makes Dr. Petit suffer.

I get that there's no right to a reply on a blog. But you did state that some of the invective directed at Otis was understandable because he doesn't reply often.

Malloy is a POS, as is Hickenlooper.

KS was pointing out that the public opposition prevented the vote to release all from the row. And the court altered that democratic bargain with bizarre reasoning. You untether what he's getting at.

Posted by: federalist | Aug 14, 2015 11:31:44 AM

Joe. The death penalty is not for the benefit of the victims. The victims are gone. They don't care one bit, being deceased. It is for the benefit of the rest of us still alive, those paying $trillions for government protection and getting very little of it, being totally ripped off. It is not even a punishment. I have opposed retribution as immature, a waste of time and money, and leading to endless cycles of vendetta. It is also from the Bible, and violates the Establishment Clause.

The death penalty is the sole reliable means of incapacitation. It is an expulsion, not a punishment. It is not even covered by the Eighth Amendment, not being a punishment. Punishment reduces the likelihood of a future behavior. Death eliminates all behavior, so it is not a punishment. A spanking after touching a hot stove is a punishment. Death from being set on fire after touching a hot stove is not a punishment. It is an ending.

Say you kill all the violent criminals at 14, the true age of real, full adulthood, according to nature (capable of having children), and according to 10,000 years of human culture and history (see the adulthood induction rituals of all religions). You are saving us a reliable 200 violent crimes a year times 60 years or 12,000 violent crimes. Price the damages from each at $10,000 including 40% drops in real estate prices within several blocks of the territory of the criminal, and you now have a benefit of $120,000,000. That places no value on the atmospherics, the removal of fear in the population, the value of trust among the population, knowing no one will victimize another in any transaction, and, of course, the value of the lives that were not taken away by these predators. Half the murder victims could have gone on to be high tax payers, and very productive members of our nation. The other half were criminals, and we are better with them dead. There is a lively death penalty of the criminal class going on already. We would be killing the other half.

I think it is appropriate to name people who support the criminal, from a practical sense. We need to make an arrest list. You are not in the lawyer hierarchy so you are safe. If you come to their rescue, all collaborators should share their fate. Zero tolerance for all lawyer betrayal of the nation.

Posted by: Supremacy Claus | Aug 14, 2015 7:38:31 PM

As to Bill Otis. He is a big boy and a seasoned appellate advocate. Some personal attack by left wing, defense side assholes on this web site would not deter him enough. There were other problems. Prof. Berman needs to ask Bill about them privately. I hope he changes his mind and returns. I am not welcome on C&C until I change my tone. My tone will change when the lawyer profession is fixed, and that will be in 200 years. So they are missing out on the views of the Ambassador from Earth to the Lawyer Profession.

Posted by: Supremacy Claus | Aug 14, 2015 7:43:32 PM

"The death penalty is not for the benefit of the victims."

That's your opinion. (1) It isn't completely true. (2) Others disagree. (3) "victims" are used here to include family members and other survivors.

It is referenced too that the d.p. incapacitates. True enough. A select few are chosen for that purpose in an arbitrary matter. Which state and federal courts determine is a problem under due process & 8A dictates.

As to Bill Otis, I don't recall the tipping point that he cites myself - I was here for a while and simply don't recall some excessive number of trolls who targeted his wife or religion. But, if that occurred, can see why he stopped coming. I think it might have been for other reasons too but anyway my comments was not in reference to that but other strong criticism. And, yes, if rarely a troll is around, that's part of it. It happens. At some point, that gets to be too much.

--

"yanking the rug out from those who want to see justice done"

Not those who opposed the death penalty. They were outvoted, perhaps. Justice by plebiscite. Doesn't work that way, of course, but this is only selectively honored. A child abuse victim suffers when they have to confront their accusers. If due process doesn't allow the death penalty "justice" does not require that. So, we are left with debating what due process actually requires. You disagree with me on the point.

Saying the invective is understandable because "he didn't reply often" is imho not a good summary of my position. Again, I refer to comments on that past thread that criticized his approach. Simply "not replying often" wasn't the point.

KS has various arguments. One was that the court opinion was against public opinion. This factored into the "broken promise" theme. I noted that public opinion on the point was significantly split, underlining even on that point the matter is complicated. Add to that the fact that this is not simply a plebiscite but a constitutional matter, which the majority opinion explained in detail.

Posted by: Joe | Aug 15, 2015 11:56:06 AM

Joe, it's tedious to have to explain this to you again--if you have a group of victims' families, you are going to have those who oppose the death penalty, and maybe some of them are happy at this turn of events, but many are not, and while those who are opposed to the death penalty probably, for the most part, just want the whole thing over with, those who participated in the sentencing process can be grievously wounded by the rug being yanked out from under them. But this is plowed ground. You try to portray abolition as a wash to victims' families, but that won't do, and you know it.

As for KS's arguments, you are simply dense. The point is that the democratic process could not produce a full repeal. It only produced a prospective repeal. SCOCT upset that democratic outcome. It's not about a plebiscite--it's about legal sentences upset by an activist court when the democratic process left them in place--and that is a "broken promise."

"explained" is an interesting choice of words. SCOCT is a joke, and so are you.

Posted by: federalist | Aug 15, 2015 12:33:30 PM

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