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Chris Aug. 18, 2015

Connecticut repealed the death penalty on April 1, 2012 but left it available to defendants whose crimes were committed before the repeal date. Last week the state supreme court, in State v. Santiago, held that the death penalty in Connecticut is unconstitutional and that those who are currently on death row can not be executed; those condemned will still die in prison because the alternative to death by execution is life without the possibility of parole.

I think it is a very strong, well-reasoned decision that is worth its 92 pages of reading. In short it holds that the death penalty, which last existed for a particular class of defendants, is cruel and unusual, largely because of the prospective-only nature of the repeal: that the decision to repeal showed the state has evolved past the death penalty period. The decision further demonstrates how the death penalty is unfairly applied and “devoid of any legitimate penological justification.” The majority also called out the legislature for making the repeal “prospective-only” largely due to the Chcshire murderers (they did not want a full repeal because it would spare the lives of Steven Hayes and Joshua Komisarjevsky), a decision that further illustrated how the death penalty is arbitrarily and capriciously applied (and in this case legislated). I followed the repeal legislation in 2011, which failed, and the successful 2012 bill. I didn’t like the prospective-only idea because the death penalty is either fair and just or it isn’t. I didn’t mind the public act as written because I saw it as a political ploy to pass the repeal and that was the most important thing. The courts would probably prevent a current death row inmate from being executed and if not, the executive branch wouldn’t be in much of a hurry to set an execution date.

There are not surprisingly many people who support the death penalty and are upset about the Santiago decision. Here’s the thing: Connecticut was one of many death penalty states that rarely executed its condemned. We executed two people in the past fifty-five years. Michael Ross, who was the first, only and last person to meet his end by lethal injection, waived his appeals and essentially consented to his death sentence. Joseph “Mad Dog” Taborsky was electrocuted in 1960 and remains the only person in state history to be sentenced to death twice; a good example of the deterrent effect not working. It was recently revealed that Connecticut does not even have the drugs needed to carry out a lethal injection. I doubt a switch back to electrocution (the electric chair is sitting in a DOC storage room in Wethersfield) or upright-jerker would pass the legislature, governor and judicial review.

One of the ironies of death penalty cases is that it keeps cases alive much longer than life sentences. Death cases have far more appeals and stays and also potential issues for collateral attacks, which often keep prisoners languishing on death row for decades. When a life sentence is imposed, the defendant starts serving it and will continue to serve it barring an exceptional development, essentially closing the book on the case.

Other state courts will likely benefit from the Santiago decision. Hopefully the federal appellate couts and U.S. Supreme Court will as well.