In what may prove to be a landmark decision, the Connecticut Supreme Court last week reversed decades of precedent in interpreting the State’s kidnapping statute. The Court issued two companion cases: State v. Salamon (concurrence and dissent) and State v. Sanseverino (dissent).
Background: Under the prior interpretation of the kidnapping statute, you would be guilty of kidnapping in the second degree (C.G.S. 53a-94) if you merely restrained an individual while committing a crime. This interpretation came from a line of cases starting twenty or so years ago, most recently reaffirmed in State v. Luurtsema.
This interpretation brought about absurd results. A defendant, who pinned down an individual for the purpose of committing sexual assault, was also then guilty of kidnapping. If I pushed you down and then punched you (clearly an assault), I would also be guilty of kidnapping.
Prosecutors used this to their advantage and routinely charged kidnapping in the second degree with other crimes, because they had to prove very little. (In fact, there were some judges who would routinely acquit defendants of kidnapping if charged as a throw-in with the underlying crime.) Under the Luurtsema interpretation, any restraint, however minimal, was sufficient to convict someone of kidnapping in the second degree – a B felony with a maximum sentence of 20 years.
The correct offense to charge, however, was unlawful restraint in the second degree – a B misdemeanor. But under Luurtsema, there was virtually no difference between kidnapping and unlawful restraint.
6 years after Luurtsema, the Court gets it right. I’m not sure they picked the case with the best facts in which to do so, but here we are. The Court engages in a very lengthy analysis of our kidnapping statutes, starting with common law.
The Court does this by focusing on the distinction between the words “abduct” (appearing in the kidnapping statute) and “restraint” (appearing in the unlawful restraint statute). The Court determines that abduct incorporates and builds upon restraint.
In what is becoming a rarity, the Court also acknowledges the practical impact of its prior interpretation:
Our failure previously to recognize such an exclusion largely has eliminated the distinction between restraints and abductions and effectively has merged the statutory scheme such that it now closely resembles the provision that the scheme was intended to replace. Unfortunately, that interpretation has afforded prosecutors virtually unbridled discretion to charge the same conduct either as a kidnapping or as an unlawful restraint despite the significant differences in the penalties that attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors— indeed, it has encouraged them—to include a kidnapping charge in any case involving a sexual assault or robbery. In view of the trend favoring reform of the law of kidnapping that existed at the time that our statutes were enacted, and in light of the commission’s stated goal of creating a modern, informed and enlightened penal code, it is highly likely that our legislature intended to embrace that reform, thereby reducing the potential for unfairness that had been created under this state’s prior kidnapping statutes.
The Court then looks to sister states and cites a number of them interpreting their kidnapping statutes in a manner contrary to Luurtsema.
The test: So what does all of this mean? Well, now, it is no longer kidnapping to restrain an individual where the restraint is merely incidental to the commission of the underlying felony. I believe this to be the operative test going forward:
‘‘[T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . . .’’ State v. Niemeyer, 258 Conn. 510, 528, 782 A.2d 658 (2001) (McDonald, C. J., concurring). In other words, ‘‘the test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.
The Court gives no guidance, however, on what would constitute “significant enough”. Perhaps that remains for another day.
The Court doesn’t go back on all of its kidnapping jurisprudence, though. There still is no minmum restraint requirement to constitute a kidnapping. However, the Court does tell us that when there is restraint incidental to the crime, for kidnapping “the confinement or movement must have exceeded that which was necessary to commit the other crime.”
The Court also states that is not double jeopardy for someone to be convicted of both kidnapping and unlawful restraint (nor could they – having established that they are separate requirements for each).
The bottom line: There are a few things to take from this decision. One, that if the restraint is merely incidental to the other felony being committed, then it is not kidnapping. Second, you can be convicted of both kidnapping and unlawful restraint in the same act.
Unanswered questions: There are some unanswered questions, unfortunately. The first is whether some slight restraint is sufficient to convict someone of kidnapping, if there is no other underlying crime. For example, if I stand in your way as you try to leave a room, for even a few seconds, is that kidnapping? (The chatter on the local listserve tells me that there is such a case currently pending before the Supreme Court. We may have an answer to this soon.)
Finally, Mike asks in the comments to my previous post: What of Mr. Luurtsema himself? It is his case that was overruled here. Does he (and others like him) get any benefit now?
I think the answer is: Maybe, but probably not. (Can I be any more vague?) Both the majority and dissent in Sanseverino recognize that Salamon can be applied retroactively to cases pending at the time of its issuance. Justice Zarella’s dissent, in footnote 1, seems to argue for a further application to cases not still pending, but it’s not clear. Or maybe that’s just me reading too much into it. (See my comment here for the text of that footnote.)
This case was not decided on Constitutional grounds, so the Teague rule probably wouldn’t apply. But in my brief search, I came upon no case where there was a retroactive application of a judicial interpretation of a statute that benefited defendants, on collateral review. If anyone knows of such a case, or has any insights on what Mr. Luurtsema might do, feel free to share them in the comments. I suspect that it will have to be litigated in habeas corpus proceedings.