Connecticut Decision Invalidating Death Penalty Has National Implications

On August 13, 2015, the Connecticut Supreme Court held that the execution of offenders sentenced to death before the Connecticut legislature prospectively abolished the death penalty in 2012 "would violate the state constitutional prohibition on cruel and unusual punishment." The majority opinion in the case, State of Connecticut v. Eduardo Santiago,is embedded at the end of this post.

At first blush, it might seem that the Santiago decision is sui generis; it's based on Connecticut state constitutionallaw, has long passages about Connecticut constitutional history, and relies heavily on the Connecticut legislature's decision to abolish the death penalty (prospectively)in 2012. But on closer inspection, it becomes apparent that the decision's reasoning cannot be limited to Connecticut -- that it has broader, national implications.

In a crucial endnote (endnote 11), the Court explicitly disavows the notion that its reliance on the state constitution rather than the federal constitution was dispositive:

It has been argued that, when an appellant challenges a statute or practice under both the state and federal constitutions, this court should first consider the state claims, turning to the federal claim only after determining that the appellant’s state constitutional challenges will not succeed. . . . [W]ewill evaluate and resolve the defendant’s claim under the state constitution. Because the legal framework that we apply with respect to allegedly cruel and unusual punishments is not fundamentally distinct from that adopted by the United States Supreme Court, we have no reason to believe that the eighth amendment would compel a different result.

(Citation omitted, emphasis added). See also slip op. at 24 (stating that the Court has "broadly adopt[ed] the framework that the federal courts have used to evaluate eighth amendment challenges").

On p. 8 of the slip opinion, Justice Palmer (for a majority of the Court) introduces the Court's substantive legal analysis with several broadly-applicable points:

Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue[s] to decline . . . .[And] it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases.

The remainder of the opinion fleshes out these and other arguments that apply well beyond the Constitution State. Below, I summarize the most important of the nationally-applicable points, in the order that they appear in the body of the Santiago majority's opinion.

I.Prior Precedent Has Limited Relevance.

First, the Santiago Court holds, citing Trop v. Dulles, 356 U.S. 86 (1958), that prior precedent upholding the death penalty can never be dispositive. At p. 24, the Court quotes Trop for the proposition that the Eighth Amendment (and thus its Connecticut analog) codifies "the evolving standards of decency that mark the progress of a maturing society." The Court then explains at p. 25: "Because the legal standard is an evolving one, it is both necessary and appropriate for us to consider the issue [of the death penalty's constitutionality] anew, in light of relevant recent developments, when it is raised."

The Court uses this reasoning to distinguishseveral prior Connecticut Supreme Court decisions upholding the death penalty. But the logic applies equally to federal courts considering the import of old federal precedents upholding the death penalty. As I've argued in two prior posts, theprinciple that challenges to the death penalty must be considered "anew, in light of relevant recent develops" (which the Connecticut Supreme Court correctly derives from Trop)hasimportantsubstantive and procedural implications for prisoners challenging the death penalty in federal court.

II.There is a Strong National and International Trend Away From the Death Penalty.

Second, the majority opinion in Santiagorecognizes that there is a strong national and international trend away from the death penalty, which indicates that capital punishment no longer comports with our nation's moral standards. On pp. 40-41, Justice Palmer writes:

Globally, 98 countries have now formally abolished the death penalty for all crimes, up from just 16 countries in 1977, and 140 countries effectively have renounced the death penalty by law or practice. The age of abolition has made America an anomaly, the last remaining holdout in a historical period that has seen the western nations embrace abolitionism as a human rights issue and a mark of civilization.

Domestically, although capital punishment remains legal in a majority of jurisdictions within the United States, the number of states eschewing the death penalty continues to rise. The United States Supreme Court has explained that ‘‘[i]t is not so much the number of these [s]tates that is significant, but the consistency of the direction of change.’’ Atkins v. Virginia, [536 U.S. 304, 315(2002)]. When Nebraska repealed its death penalty in May, 2015, it became the seventh state in just nine years to have abolished capital punishment either prospectively or completely. In total, nineteen states and the District of Columbia no longer permit the imposition of new capital sentences. . . .

Even within those jurisdictions where it remains legal, use of the death penalty (in terms of executions and especially death sentences) has declined significantly in recent years. The total number of executions carried out nationally has fallen by more than 60 percent from the post- Furman peak of 1999, dropping from 98 in 1999 to 39 in 2013, and then falling again to 35—a 20 year low—in 2014. Of the 35 executions carried out in 2014, approximately 90 percent occurred in just four states: Texas, Missouri, Florida, and Oklahoma.

Nationwide death sentences have dropped even more precipitously, falling from modern era highs of more than 300 annually in the mid-1990s to modern era lows of 85 or fewer since 2011. The number of death sentences imposed in 2014, 73, was by far the lowest in the post- Furman era. That same year, Governor Jay Inslee of the state of Washington imposed a moratorium on the carrying out of the death penalty in that state, and Governor Martin O’Malley of the state of Maryland announced his intention to commute all remaining death sentences for those inmates in the state’s prison system to life without parole. The latter decision, reached after Maryland’s attorney general called into question the legality of carrying out previously imposed death sentences, effectively transforms Maryland’s prospective only repeal into a full abolition of the death penalty. Notably, by 2012, less than 2 percent of the nation’s counties accounted for all of the death sentences imposed nationwide. . . .

[T]he regional disparities are both instructive in their character and striking in their magnitude. Of approximately 1400 executions carried out nationwide since 1976, nearly two thirds have been performed in just 5 states, and Texas alone accounts for more than 37 percent of the total. Ten states have accounted for 83 percent of the post- Furman executions in the country. The geographic concentration of those executions is remarkable. The thirteen states that comprised the Confederacy have carried out more than 75 percent of the nation’s executions over the past four decades. Adding in Oklahoma and Arizona—not yet states at the time of the civil war—brings the total to nearly 90 percent.

(Some citations, punctuation, and endnotes omitted.)

In endnote 86, the Connecticut Supreme Court puts a fine point on its implication that the states that retain the death penalty are those with the worst records on human rights. In the endnote, Justice Palmercites scholarship fromCarol and Jordan Steiker stating that there is a "broad scholarly literature . . . point[ing] to the fact that executions are overwhelmingly confined to the South [and states bordering the South], the very same jurisdictions that were last to abandon slavery and segregation, and that were most resistant to the federal enforcement of civil rights norms."

As the Connecticut Supreme Court correctly recognizes, the undeniable, consistent trend away from capital punishment provides significant evidence that the death penaltyno longer comports with constitutional guarantees against cruel and unusual punishment. And it's telling that the jurisdictions most enthusiastic about capital punishment are those whose norms have been, at least historically,most out of step with our national character. The Santiago Court's reasoning in these respectsapplies not just in Connecticut, but nationwide.

III.Public Opinion Supporting the Death Penalty in the Abstract is Not a Valid Reason to Retain It.

After surveying the trend away from capital punishment, Justice Palmer pushes back against accusations by the dissent that he has failed to take into account public opinion polls showing continuing support for the death penalty. In endnote 87, Justice Palmer responds that, while objective evidence of societal norms is relevant to the constitutional analysis, ultimately

the right to be free from cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote. The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

(internal punctuation omitted.) This point, too, applies not just in Connecticut, but everywhere else as well.

IV.The Death Penalty Does Not Deter.

Section III of the Santiago majority's opinion is titled, "The Death Penalty is Devoid of Any Legitimate Penological Justifications." In this section, the Santiago Court marches through all the traditional purposes of punishment (deterrence, retribution, incapacitation, and rehabilitation) and finds that none can justify the death penalty. Citing U.S. Supreme Court precedent, the Santiago majoritydeems it "generally accepted that, if capital punishment is to be morally and legally justified, it must be based on the deterrent or retributive value of executions." And it finds both justifications wanting.

Although he might have relied solely on prospective abolition to show a lack of deterrent effect, Justice Palmer says that there would be no deterrent effect "[e]ven if the legislature had not prospectively abolished the death penalty":

Although some studies have purported to document a deterrent effect, the majority of social science research on the issue concludes that the death penalty has no effect on the homicide rate. A principal reason for this failure of deterrence appears to be the substantial delays involved in actually carrying out a sentence of death. The number of potential state and federal postconviction remedies available, the range and complexity of legal issues involved in capital appeals, and the multiple stages of review mean that at least one decade typically passes from capital crime to execution, and delays of twenty years or more are not at all uncommon. The delays, moreover, appear to be getting longer. Of the thirty five offenders executed in the United States in 2014, only one had been on death row for less than one decade, and the average time from sentencing to execution exceeded seventeen years. . . .

The deterrent value of any punishment is, of course, related to the promptness with which it is inflicted. . . . [T]he fact that one who commits the most heinous of crimes can expect to spend decades in prison prior to any execution suggests that capital punishment promises little if any deterrence above and beyond life imprisonment. . . .

(Citations omitted).

Justice Palmer also writes that "the sheer rarity" with which death sentences are imposed undercuts any deterrent effect. He quotes Justice Alex Kozinski of the Ninth Circuit Court of Appeals as follows:

Rather than go through the competing considerations, let's cut to the meat of the coconut. The death penalty, as we now administer it, has no deterrent value because it is imposed so infrequently and freakishly. To get executed in America these days you have to be not only a truly nasty person, but also very, very unlucky.

To state the obvious, there isscant reason to believe that the death penalty would deter in, say, Arkansas, while not deterringin Connecticut.

V.The Death Penalty Lacks any Retributive Justification.

Remarkably,the Santiago majoritynext attacks the notion that retribution is a legitimate purpose of punishment, pointing to a similarly remarkable statement from Justice Anthony Kennedy:

Both this court and the federal courts have recognized that, as society has evolved and matured, the erstwhile importance of retribution as a goal of and justification for criminal sanctions has waned. . . .[T]he United States Supreme Court has cautioned that, of the valid justifications for punishment, ‘‘retribution . . . most often can contradict the law’s own ends. This is of particular concern . . . in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.’’ Kennedy v. Louisiana, [554 U.S. 407, 408, 419 (2008)]. Accordingly, ‘‘[r]etribution is no longer the dominant objective of the criminal law.’’ Williams v. New York, 337 U.S. 241 (1949).

The Santiago Courtthen proceeds to show that, even assuming retribution is valid purpose of punishment, "there are four reasons why capital punishment, as administered in Connecticut, simply does not serve a meaningful retributive purpose." Despite the state-specific hedging,all fourof the Court's reasons apply not just in Connecticut but throughout the country. Those four reasons are:

1. Infrequency. The vast majority ofmurderers (and after prospective abolition, all future murderers) receive a sentence less than death. And, "when the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that the death penalty serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random few." (Slip. op. at 50,emphasis added).
2. Delay. The lengthy delays between offense and execution undermine any retributive purpose because the person who ultimately suffers the execution is a very different person from the one who, decades earlier, committed the murder. Lengthy delays also "grievously undermine[]" the interest in "providing victims and their families with a sense of respite, empowerment, and closure." (Slip op. at 51-53).
3. Innocence. "Statistical analyses have demonstrated to a near certainty that innocent Americans have been and will continue to be executed in the post-Furman era." (Slip op. at 53-55.) And itshould go without saying that no one deserves to be executed for a crimehe or shedid not commit.
4. Caprice and Bias. The "capital punishment system fails to achieve its retributive goals [because] the selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias." (Slip op. at 55-60.)

VI.The Gregg Experiment Has Failed.

In determining that the capital punishment system is "inescapably tainted by caprice and bias," the Santiago Courtholds that constitutional experiment announced in Gregg v. Georgia, 428 U.S. 153 (1976), is theoretically incoherent and a failure in practice.

The Court explains the Gregg experimentat pp. 12-14:

[T]he eighth amendment prohibits punishments that are imposed in an arbitrary and unpredictable fashion. In the context of capital punishment, the United States Supreme Court has indicated that there are two dimensions to this rule.

On the one hand, in Furman v. Georgia, 408 U.S. 238 (1972), . . . and four years later in Gregg v. Georgia . . .[,] the court established the principle that a capital sentencing scheme must provide the sentencing authority sufficient guidance as to which crimes and criminals are death worthy to ensure that the death penalty is not imposed in an arbitrary or freakish manner. To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. . . . [A capital sentencing statute] must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death. . . . The eighth amendment, then, requires that any capital sentencing scheme determine which defendants will be eligible for the death penalty on the basis of legitimate, rational, nondiscriminatory factors.

On the other hand, the United States Supreme Court also has insisted that, at the sentencing stage, juries must have unlimited discretion to assess "the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). The court in Woodson held that this sort of individualized sentencing determination is necessary to arrive at a just and appropriate sentence and to honor the eighth amendment's fundamental respect for humanity. The court has also consistently indicated that the government has broad discretion as to whom to prosecute and what charge to file. As currently construed, then, the federal constitution simultaneously requires that states narrowly limit and carefully define which offenders are eligible for capital punishment, while, paradoxically, also giving prosecutors and juries, respectively, virtually unfettered discretion whether to actually charge defendants with capital crimes and whether to sentence offenders to death.

(Some citations and quotation marks omitted.)

Justice Palmer then explains at pp. 55-60how and why the Gregg experiment has failed:

[T]here is an inherent conflict in the requirements that the eighth amendment’s ban on cruel and unusual punishment, as interpreted by the United States Supreme Court, imposes on any capital sentencing scheme. . . .

The question is whether th[e] individualized sentencing requirement inevitably allows in through the backdoor the same sorts of caprice and freakishness that the court sought to exclude in Furman, or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing. In other words, is it ever possible to eliminate arbitrary and discriminatory application of capital punishment through a more precise and restrictive definition of capital crimes if prosecutors always remain free not to seek the death penalty for a particular defendant, and juries not to impose it, for any reason whatsoever? We do not believe that it is.

* * *

After thoroughly reviewing the operation of Connecticut's capital sentencing scheme over the past four decades, we are persuaded that . . . the opportunity for the exercise of unfettered discretion at key decision points in the process has meant that the ultimate punishment has not been reserved for the worst of the worst offenders. . . . [T]he process of selecting offenders for execution has been both under inclusive and over inclusive. Many who commit truly horrific crimes are spared, whereas certain defendants whose crimes are, by all objective measures, less brutal are condemned to death.

Thispassage would be no less accurate if the phrase "Connecticut's capital sentence scheme" were replaced with "the retentionist states' capital sentencing schemes."

* * *

In conclusion, judges and practitioners should not be misled by the state-specific dress in which the Connecticut Supreme Court has clothed itsjudgment that the death penalty is unconstitutional. The heart of Justice Palmer's powerful opinion shows that the death penalty is unconstitutional not just in the Constitution State but nationwide.

The views expressed by Mr. Lee are purely his own and do not necessarily represent the views of the Federal Public Defenders Office or any of his clients.