There’s been a lot of commentary about the abolition of the death penalty in Connecticut since State v. Santiago [PDF] was decided last week. Some of it has been interesting and insightful, if a bit of the “shh-don’t-give-them-any-ideas” variety. Some has been predictable and offensive.
A lot of the narrative has been what I call “conservative clickbait” with two themes:
- That the court engaged in judicial activism to overrule the clear will of the people of Connecticut, by abolishing death for all death row inmates retroactively, in clear contravention of the 2012 legislation that specifically said ‘prospective only’.
- That it is inconceivable that the two “Cheshire killers” will not get death.
I want to point out a few things about both these arguments because they are intellectually dishonest, misleading and dangerous.
First, the notion that a court – the third, independent branch of Government – cannot review and rule on the legality of legislation passed by elected representatives of the people was dispensed with in 1803 in Marbury v. Madison. It is an idiotic notion and anyone who espouses that should immediately have conveyed to you their utter stupidity. So the further question, then, is whether the judiciary must give deference to the legislature which has decided what is a crime and what are the punishments for those crimes. This is the argument raised by the Chief Justice’s dissent, which is quoted by many in support of their “judicial overreaching” argument.
This is also fallacious. Courts routinely decide whether a law is too vague, or whether the punishment exceeds constitutional bounds, like, say, execution of the mentally retarded, or of juveniles, or life without parole for juveniles, or criminalizing sodomy or making it illegal to marry a person of another race, or of the same sex.
This is precisely the function of a court: to review the laws passed by elected representatives and decide if they comport with due process and other constitutional guarantees, such as the prohibition against cruel and unusual punishments. The judiciary has this independent function to serve as a check against the oppressive power of a majority. Our history is all too littered with examples of a majority imposing its moral will on a minority through the legislative process.
In fact, this is precisely what the Connecticut Supreme Court majority did in Santiago. But first what it didn’t do: it didn’t rule that the death penalty itself is unconstitutional. It specifically stated that if the people of Connecticut wanted to amend the Constitution to state that our evolving standards of decency will always encompass the punishment of death, then we are free to do so.
What it said was that the prospective abolition of the death penalty in 2012 was the straw that broke the camel’s back. It is the the last sign needed to conclude that Connecticut no longer considers the death penalty a legitimate punishment. While the repeal law was the catalyst, it was not the sole factor.
For instance, Connecticut had been trending towards abolition since the mid-2000s.
In 2003, a Quinnipiac University poll found that 47% of CT voters favored death and 46% favored life.
In 2005, a QU poll found that CT voters favored life by a margin of 49-37%.
And then Cheshire happened. Two of the most notorious killers in CT brutally tortured and murdered almost an entire family. It was horrible and set off a shockwave of profound effects in the CT criminal justice system.
Yet. In November 2007, that same year, a QU poll found that CT voters were essentially split 47-44 between death and life.
In 2009, the Connecticut legislature abolished the death penalty. Remember that? Governor Rell vetoed it.
And yet, in 2010, a QU poll found that CT voters were still split between death and life, 46-41%.
In 2011, abolition came by again and this time it was defeated by two legislators, Edith Prague and Andrew Maynard, both self-proclaimed fervent abolitionists, who both could not bear to see the Cheshire killers live and thus they killed abolition.
And yet, despite all of that hoopla, in 2011 a QU poll found that CT voters hadn’t budged much on the death penalty: 48-43.
In 2012, abolition came for a third time and this time it stayed. A QU poll found that CT voters were now exactly split on death vs. life: 46-46%, a bit of an upward trend for life.
And even the abolition that came in 2012 was a compromise. It was abundantly clear to everyone who watched the proceedings that prospective abolition was the consolation prize. We were settling for this because no one wanted to be seen publicly agreeing to give the Cheshire killers life.
To anyone following the course of abolition in Connecticut, there is no doubt that if Cheshire had not happened, the death penalty would’ve been abolished in 2007 or 2009. And no one would’ve cared.
This – not the 2012 law alone – is what leads the supreme court to conclude that we just don’t have the appetite for death anymore in Connecticut. That we have determined, through the legislature, that death is not a viable option anymore.
And if it cannot be a viable option going forward, then how can we say that we will still execute people? If the death penalty is no longer a valid punishment, then it is no longer a valid punishment for everyone. If we will not execute anyone because the death penalty is barbaric, or fraught with problems, or irreversible, or too costly, or morally repugnant, or a waste of time and money or overrun with racial and geographic bias, then that argument holds true regardless of the date of the offense. Because it is to the time of punishment that we look in determining if we have the stomach for executions.
That time is now and we don’t. Frankly, Connecticut never has had the stomach for executions. The last two have been volunteers and they’ve been the only two in over half a century.
It would have been judicial contrivance to say that the will of the people magically changed on that night in April 2012 and that from that day onwards and only onwards, would we have evolved to the point of disfavoring death.
Either Connecticut no longer imposes the death penalty or it does. We can’t do it for some and not others, where that distinction isn’t based on the acts or the individual but rather the date of the crime.
But really, this is about the Cheshire killers and our collective desire to see them dead. While Connecticut voters’ enthusiasm for the death penalty waxed and waned and ebbed and flowed, there really was an overwhelming consensus that the Cheshire killers be put to death. Voters wanted them executed by 4-1 margins.
Abolition bills were vetoed and nixed because of those two.
And yet, that is precisely why retaining the death penalty is a dangerous idea. To pin the veto of repeal or the reason for suddenly voting against abolition after being an abolitionist for most of one’s life on the desire to see those two individuals executed comes awfully close to a bill of attainder. That should frighten everyone.
Bills of Attainder, of course, were acts of the legislature that targeted specific groups of people and punished them. They are unconstitutional everywhere in this country and rightfully so because they are, in effect, the government singling out a few individuals because of who they are, not what they did.
To permit the death penalty to continue as a viable punishment solely because we want to execute those two – and, seriously, no one knows the other death row inhabitants or their victims, which is disgusting and insulting on its own – should be a notion that wakes the libertarian hiding inside each one of us.
The supreme court did what was squarely within its power to do. The death penalty is a contentious, moral issue, which is debated while seated on the corpses of the dead. It should be treated with the solemnity it deserves. To accuse the justices of neglecting the law to achieve a personal goal – activism – is to insult the profound questions we grapple with and demean our convictions that society must always evolve to be more humane and more decent.
There is no greater embodiment of this idea than Justice Palmer himself. Justice Palmer, who wrote the majority opinion, has voted to retain the death penalty every single time since he joined the bench. By my rough count, he’s had more than a few opportunities since 1993 to pen an opinion finding the death penalty unconstitutional. Rather, up until 2015, Justice Palmer had only said that the death penalty was not violative of the Constitution. To say that he flipped his vote out of judicial activism is to put political theater over the reality of coming to terms with a difficult but logical evolution in how we wish our society to be.