The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:

Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:

It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.

It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.

The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:

not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial.  Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23).  A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.

For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number.  Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.

Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group.  The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.

The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:

1.  There are enormous and unexplained geographic disparities.
2.  Death sentences are not confined to the worst murders.
3.  There is gender bias in death sentencing.
4.  There is racial bias in capital outcomes.
5.  There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.

That sounds awfully like the State’s expert agrees with the defense expert.

The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.

Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission’s inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.

You might recall that back in August I posted that Connelly was the subject of a federal investigation into whether he had accepted compensation from his good friend – and defense attorney Martin Minella – in exchange for favorable treatment of Minella’s clients. That Federal investigation is still ongoing. Palmer’s statement is particular noteworthy because it seems that the Commission had conducted its own inquiry into this alleged unethical conduct and was ready to issue some form of punishment. That has now been rendered unnecessary by Connelly’s resignation:

Palmer said that the commission had honored a request that it refrain from engaging in any activities in furtherance of its inquiry that might have impaired or otherwise interfered with the federal investigation. Palmer also said that despite this limitation on the commission’s inquiry, it was prepared to take appropriate action with respect to the allegations against Connelly, but that any such action has been rendered unnecessary by Connelly’s resignation.

Now that may or may not mean anything about the “action” the commission was ready to take, but it certainly does indicate that Connelly was to receive some form of rebuke, separate from the Federal investigation.

The disproportionate number of death sentences originating in Waterbury had been the driving force behind a racial and geographical disparity lawsuit that is still pending.

What this means for the state of the death penalty in Connecticut or for those who were tried by Connelly in capital and non-capital cases is anyone’s guess. Mine is that there will be no consequences and that’s a damn shame.

Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.

One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.

According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”

Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.

By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.

[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

The death penalty is but one type of sentence that is subject to this disparate effect. There is a strong argument to be made that all sentencings are inherently biased and that the data exists – if only one would look for it – that blacks and minorities are routinely sentenced more harshly than their white counterparts. Even controlling for variables like criminal history (which presents an interesting chicken-and-egg argument), there is ample anecdotal evidence to suggest that minorities are indeed treated more harshly than whites.

Yet, there is McCleskey. It is not the effect, but the purpose, we are told. So our conscience must be clear.

And so today, in a non-death penalty case, former Connecticut Supreme Court Justice David Borden, writing for an unanimous appellate court in Abdullah v. Commissioner, holds out his handcuffed hands and cites to McCleskey as often as is conscionable:

The short answer to this argument [that the Court should recognize McCleskey as an outlier and decline to apply it] is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard  to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237,  175 L. Ed. 2d 163 (2009).

But we must remember that there are always two Constitutions at play in criminal justice: the Federal and the State. Abdullah, for some reason, makes a complete muck out the State constitutional argument, failing to even raise it in his opening brief. Justice Borden, ever the brilliant jurist, seems somewhat disappointed with his inability to even attempt a bite at the apple:

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have  indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare  decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is  precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would  have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Maybe he’ll still get his chance with the death penalty racial disparity litigation that’s ongoing. State v. Geisler is a Connecticut Supreme Court case which lays out the rubric under which state constitutional claims are to be analyzed. Geisler, in the context of this post, also provides the perfect segue for a greater problem with cases like McCleskey and the 5-4 vote of most controversial decisions today. The majority opinion in Geisler was penned by Justice Berdon (not to be confused with Justice Borden), who is this blog’s favorite jurist ever in the history of the world.

And the problem is this: Justice Powell’s belated change of mind has left in place a terrible decision that continues, to this day, to block any and all attempts at legitimately explaining the injustices inflicted by the death penalty in its application. That the death penalty even exists in its current form in the United States can be traced back to one man. That the application of our laws and the erosion of our fundamental rights and protections and liberties are the product of the particular whims and fancies of one (or nine) individual is pretty potent food for thought.

In times such as these, I turn once again to Justice Berdon:

[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.

Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

Sec. 4. (NEW) (Effective October 1, 2010) The Chief Public Defender, the Chief State’s Attorney and the Chief Court Administrator, or their designees, shall develop and implement a plan for the collection and maintenance of information on all homicide cases that could be charged and prosecuted as capital felonies, notwithstanding that any such homicide case is not charged, prosecuted or disposed of as a capital felony. Such information shall include, but not be limited to: (1) Information on the race, ethnicity, gender, religion, sexual orientation, age and socioeconomic status of the defendant or defendants and the victim or victims, (2) information on the geographic area where the offense occurred and where the offense was prosecuted, (3) the nature and circumstances of the offense, (4) the offense or offenses for which the defendant was charged, (5) the offense or offenses for which the defendant was prosecuted, (6) if the case was tried by a jury, the race, ethnicity and gender of the persons who served on the jury and the persons who were excused from serving on the jury, (7) the offense or offenses for which the defendant was convicted or acquitted, (8) the sentence sought by the prosecution, and (9) if the defendant was convicted, whether such conviction was the result of a trial or a plea, and the sentence imposed.

Sec. 5. (NEW) (Effective October 1, 2010) (a) No person shall be subject to a sentence of death or sentenced to death if such sentence was sought on the basis of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim.

(b) A defendant charged with the commission of a crime punishable by death may raise a claim that considerations of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim played a significant part in the decision to seek or impose a sentence of death in his or her case. The defendant shall raise such claim at the pretrial conference. The defendant shall state with particularity how the evidence supports such claim.

(c) The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties.

(d) At such hearing, the defendant has the burden of proving by clear and convincing evidence that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the death penalty. The state may offer evidence in rebuttal of the claims or evidence of the defendant.

(e) Evidence relevant to establish a finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may include statistical evidence or other evidence, or both, that sentences of death were sought significantly more frequently: (1) Upon persons of one race, ethnicity, gender, religion or sexual orientation than upon persons of another race, ethnicity, gender, religion or sexual orientation, or (2) as punishment for offenses punishable by death committed against persons of one race, ethnicity, gender, religion or sexual orientation than as punishment for offenses punishable by death committed against persons of another race, ethnicity, gender, religion or sexual orientation.

(f) A finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may be established if the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was a significant factor in decisions to seek the sentence of death in other cases in this state at the time the sentence of death was sought.

(g) If the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the sentence of death, the court shall order that a sentence of death shall not be sought.

McCleskey? What McCleskey? You thought I was done? How wrong you are. The bill further calls for the creation of a committee to which the state must make a request to seek the death penalty in a particular case, just like with the Federal system, grandly titled The Death Penalty Authorization Committee. The attorney for the defendant will have an opportunity to convince the Committee why the death penalty should not be sought in a particular case.

Sadly, these proposals weren’t pulled out of someone’s ass. They are, in fact, the very recommendations of the Connecticut Commission on the Death Penalty, submitted to the legislature a long 7 years ago. [The full report can be found here.]

Astute readers will have by now guessed that the chance any of these bills will become law is next to a negative billion. In fact, the death penalty bill may have the lowest chance of becoming law ever in the history of legislation in the entire world. But someone in the legislature is up to something and this will make the public hearing damn entertaining. Pity I won’t be able to attend, but if you are, use your mobile phones and leave comments tomorrow.

You’ll find a video of Dr. King’s speeches elsewhere in the blogosphere, so I’m gonna give you a video instead. Taken from last year’s BR:

[youtube]http://www.youtube.com/watch?v=D7COntXhPcI[/youtube]

In a 13-9 vote, the Commission today recommended abolition of the death penalty in Maryland. In preparing this report:

The Commission held five public hearings where testimony from experts and members of the public was presented.  The Commission also held five additional meetings where the testimony and evidence presented to the Commission was discussed and later voted upon. The Commission has made a recommendation concerning the application and administration of capital punishment in the State so that they are free from bias and error and achieve fairness and accuracy.

So, let’s cut to the chase. The findings of the Commission are these:

1. Racial disparities exist in Maryland’s capital sentencing system.
2. Jurisdictional disparities exist in Maryland’s capital sentencing system.
3. Due to a lack of research on socio-economic disparities in Maryland, the Commission does not reach a conclusion on this matter.
4. The costs associated with cases in which a death sentence is sought are substantially higher than the costs associated with cases in which a sentence of life without the possibility of parole is sought.
5. While both life without the possibility of parole and death penalty cases are extremely hard on families of victims, the Commission finds that the effects of capital cases are more detrimental to families than are life without the possibility of parole cases. The Commission recommends an increase of the services and resources already provided to families of victims as recommended by the Victims’ Subcommittee.
6. Despite the advance of forensic sciences, particularly DNA testing, the risk of execution of an innocent person is a real possibility.
7. While DNA testing has become a widely accepted method for determining guilt or innocence, it does not eliminate the risk of sentencing innocent persons to death since, in many cases, DNA evidence is not available and, even when it is available, is subject to contamination or error at the scene of the offense or in the laboratory.
8. The Commission finds that there is no persuasive evidence that the death penalty deters homicides in Maryland.
9. Ultimate Recommendation: The Commission recommends abolition of capital punishment in the state of Maryland.

Oddly, a lot of the individual findings were heavily supported, yet the overall recommendation was passed by a vote of only 13-9. For example, the “closest” vote was 16-5 in favor of the finding #7. The deterrence finding was supported 17-4. That goes to show that, for some, there is an inherent bias in favor of the death penalty and an inherent support of the death penalty in face of the many obvious problems associated with it.

Whether the legislature adopts this report and its conclusions remains to be seen. Undoubtedly, though, this is a big win for abolitionists. The momentum’s a-comin’.

Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.

The arbitrariness of the death penalty is also something to ponder. Orin Kerr, over at Volokh, wrote this comment a few days ago:

I suppose I don’t like the idea of living in a world in which our constitutional rights depend entirely on what 9 people think would be a cool thing to do on any particular day: I think our rights should be more grounded and more stable, even if I think I would probably agree with what the 9 people think is cool.

This comment made me pause and reminded me of Justice Berdon‘s dissent in Ross II in 1994:

Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.

In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty. And yet it continues to be imposed and applied. Consider that in light of the fact that three US Supreme Court justices (former and present) have changed their views on the death penalty.

Justice Blackmun, dissenting from the denial of cert. in Callins v. Collins wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1 Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

Justice Powell, who voted in the majority in McCleskey, soon regretted his vote:

The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. 28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1.

Berdon, J., dissenting in Ross II. The lack of any deterrent, the racism in the application of the death penalty, the growing number of exonerations all militate toward abolishing the death penalty.

Those in favor of the death penalty have no real argument other than to poke holes in the constitutional arguments of abolitionists. For there is but one reason to support the death penalty: retribution. If I am wrong, correct me. Why is the death penalty necessary? What purpose does it serve other than to exact revenge?

Since Gregg, the number of states that actually execute inmates has reduced. With the exception of CT, all New England states have abolished or stopped using the death penalty. Perhaps the reluctance to impose the death penalty is gaining momentum. 2008 saw only 37 executions, the lowest since 1994. [Read the DPIC's year end report here.]

Because I am not half the jurist that Justices Brennan and Berdon were, I will let them conclude (again quoting from Ross II):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws. The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.

CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).

In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.

“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”

This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:

“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”

Previous coverage here, here, here and here.

Much was made of the location of the hearing, but it used to be the norm back in the day. What interests me and I’m sure will interest some of my readers is this graphic in the Courant, which seems to have all the relevant data (if they would only please upload a real copy of the study and not the bizarre hacked 7-page version).

So, as you can see, black and white defendants are charged with a capital felony about the same, but when it comes to a white victim, there is a significant disparity (about 21%). When there is a white victim, as opposed to a black victim, the death penalty is sought 19% more.

SL & P links us to this NYT article which can’t even correctly report how many people CT has executed in the last 30 years. It says none, Michael Ross says hello.

The bottom line: Will Judge Fuger grant this Motion to Dismiss? I d0ubt it, but I wouldn’t be surprised.