Death Penalty Decision Divides State Lawmakers [Courant]

August 14, 2015

Hartford Courant

HARTFORD — When the House of Representatives voted to repeal the death penalty in Connecticut three years ago, the chamber’s Republican leader called the measure “a fraud on the public” because it applied only to crimes committed after the law was enacted.

“How can you say, in your heart and with your vote, that it should no longer be the policy of the state of Connecticut to commit anyone to death and yet at the same time say, ‘except for these 11 guys?”’ already on death row, former Rep. Lawrence Cafero asked. “How do you justify that?”

On Thursday, a slender majority on the state Supreme Court came to essentially the same conclusion, ruling that it would be unconstitutional to execute anyone in Connecticut, including the 11 inmates on death row.

The General Assembly eliminated capital punishment in April 2012. But to win support for the bill, lawmakers forged a politically inspired compromise — repeal the death penalty for future cases but maintain it for the men currently on death row, including Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky.

Gov. Dannel P. Malloy, a former prosecutor who is opposed to capital punishment, sought to ensure that any efforts to repeal the death penalty contain a provision that would exempt Hayes and Komisarjevsky. “Let’s be very clear,” he said during a gubernatorial debate in 2010, about a month before he was elected. “I want to be very, very, very clear. … If these two gentlemen are sentenced to death, that sentence will be carried out. Period.”

On Thursday, Malloy issued a carefully worded statement in response to the court ruling. “When Connecticut’s law was passed, it did not apply to the 11 inmates currently serving on death row,” he said. “We will continue to look to the judicial system for additional guidance on this rule. But it’s clear that those currently serving on death row will serve the rest of their life in a Department of Correction facility with no possibility of ever obtaining freedom.

Republicans were quick to react, lashing out against the court for usurping the legislature’s authority by blocking the executions of those currently on death row.

“Today Connecticut’s Supreme Court stepped way out of line and wrongfully took on the role of policymakers. Their ruling deliberately circumvented the will of the people and the legislators who represent each and every Connecticut resident,” said Len Fasano of North Haven, the Republican leader in the Senate.

“If the court rejected the death penalty repeal legislation based on an argument that it violated equal protection by creating a separate class of citizens, the remedy should rightly be to strike it down, which would leave us with the death penalty intact per prior law,” Fasano added. “Instead, the activist court chose to act as policymaker and expand the repeal beyond what was approved by state lawmakers.”

With the trauma of the Cheshire killings still so fresh in the minds of many lawmakers, Fasano said the legislature never would have approved repealing the death penalty if it knew that it would prevent Hayes and Komisarjevsky from being put to death.

However, Sen. Gary Winfield, a New Haven Democrat who was one of the chief proponents of repeal, noted that the legislature approved a bill eliminating capital punishment for all inmates, current and future, in 2009, when the horrors of Cheshire were even more immediate. That bill was vetoed by former Gov. M. Jodi Rell.

In her dissent, Justice Carmen Espinosa wrote that the legislature could act to bring back capital punishment in Connecticut.

The ruling also noted the legislature could bring back the death penalty through a constitutional amendment, which would be a formidable hurdle for proponents to overcome.

“After many hours of public testimony and debate, the General Assembly was clear when it acted in 2012 — those previously sentenced to capital punishment should receive just that unless overturned on appeal or through the state or federal habeas process,” Senate President Martin Looney said.

House Republican leader Themis Klarides of Derby said she doubts there’s a willingness among lawmakers to get the death penalty back. “I support it and I know a lot of people did, but it’s a complicated emotional issue.”

A Quinnipiac University poll released in May 2014 showed strong public support for capital punishment. Voters in the state backed the death penalty, 58 percent to 36 percent. However, when asked if they favor a law that replaces the death penalty with life in prison without the chance of parole, the results were mixed, with 47 percent approving and 49 percent disapproving.

Although opponents of the death penalty hailed the court’s decision — Dan Barrett, legal director of the ACLU of Connecticut, called it “a breath of fresh air” in death penalty litigation — policymakers were more measured.

“Some of the people who were in that fight with me see this as a day to celebrate,” Winfield said. “I have a hard time celebrating. We have to be very careful and [think about] the family members who have been left behind.”