“The Activist Court Chose to Act as Policymaker” [CT Post]

CT Post

Now that the state Supreme Court has ruled that executing 11 of Connecticut’s most-violent killers would be unconstitutional, supporters and opponents of capital punishment agree legislators set up a challenge when crafting the law that ended the death penalty.

The 2012 repeal only applied to future crimes, not those for which the killers had already been convicted. That contradiction set the scene for a successful appeal by then-death row inmate Eduardo Santiago and the resulting court ruling Thursday.

“I think it really puts to rest the illegal limbo we’ve been in since the prospective law was passed,” said the state’s chief public defender, Susan O. Storey. The ruling sends Santiago’s case back to Superior Court for re-sentencing and the other 11 killers will follow. Instead of death, the killers will be locked up until they die in prison.

In June 2012, the state Supreme Court ordered a new sentencing hearing for Santiago.

Opponents of capital punishment were buoyed by the decision, saying victims’ families will now be spared decades of appeals that cost taxpayers untold millions and force loved ones to relive graphic details of the crimes in open court.

“Capital punishment is incredibly expensive and not just in financial terms, but for everyone involved emotionally, from the victims’ families to the defendants’ families, to the juries, the public defenders, even for the Department of Correction staff,” Storey said. “I’m glad for them that a lot of that stress is over.”

But supporters of the death penalty say they were misled when told the denizens of Death Row would eventually face lethal injections.

“The activist court chose to act as policymaker and expand the repeal beyond what was approved by state lawmakers,” state Senate Minority Leader Len Fasano, R-North Haven, said. “This court has overstepped its constitutional obligations and allowed personal interpretations of what some may think are just and fair to overshadow the law as defined and enacted by the people.”

First in 2009 and again in 2012, lawmakers were assured that if they voted for a prospective repeal, it would not save those awaiting execution, particularly Joshua Komisarjevsky and Steven Hayes, convicted of the 2007 Cheshire home invasion and murders of Jennifer Hawke-Petit and her two daughters.

“Multiple lawmakers never would have voted in support of repealing the death penalty if the legislation was retroactive,” Fasano said. “It’s true that the legislative intent was to make the 2012 law only prospective,” said Senate President Martin M. Looney on Thursday night, recalling public hearings and debates at the committee level as well as floor arguments in the House and Senate.

Still, now that the court has ruled, the only way the death penalty could be revived would be through a statewide constitutional amendment that would have to first be approved by two General Assemblies, then ratified by voters. Looney, D-New Haven, a longtime advocate for repeal of the death penalty, believes that such a path is very unlikely in light of Palmer’s constitutional interpretations.

Now, barring an unlikely request for rearguing the issue before the Supreme Court, Death Row inmates will begin a series of lower court hearings within the next two months on resentencing them to life in prison.

Michael A. Fitzpatrick, a Bridgeport defense lawyer and death-penalty expert, represented Michael Ross, the last person to be put to death in Connecticut. Ross, a Cornell-educated serial rapist and killer who admitted to murdering eight women and girls, opted for lethal injection in 2005.

Fitzpatrick praised the court ruling and said that, without it, the 11 on Death Row would still be decades away from a date with a lethal injection.
“It’s not just a good thing. It’s the right thing,“ he said. “Connecticut has never had the stomach or the appetite to execute people.”

Indeed, that was part of the reasoning in the 92-page decision written by Associate Justice Richard N. Palmer. Palmer, a former U.S. Attorney and Chief State’s Attorney who had been a longtime supporter of the state’s death penalty, wrote that with just two executions in the last 50 years Connecticut essentially did not have capital punishment.

“It no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment,” Palmer wrote. “Because such a system fails to comport with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently applied, violates the constitution of Connecticut.”
Associate Justices Flemming L. Norcott Jr., Dennis G. Eveleigh and Andrew J. McDonald of Stamford joined Palmer in the majority. Chief Justice Chase T. Rogers dissented, calling the reasoning of the majority “fundamentally flawed.” Associate Justices Carmen E. Espinosa and Peter T. Zarella also wrote dissents.

Evolving standards

Thirty one states still have capital punishment on their books, according to the nonprofit Death Penalty Information Center. In the nine-state Northeast region, only New Hampshire and Pennsylvania retain the death penalty. In the mid-1990s under then-Gov. John G. Rowland, the capital-crime statutes were rewritten, but they failed to speed up the appeals process.

Another Bridgeport-based attorney, Edward J. Gavin, former president of the Connecticut Criminal Defense Lawyers Association, said the decision Thursday was like an “early Christmas” and “overwhelming” after he and other lawyers worked for years, testifying to the General Assembly and winning legislative allies to finally gain the 2012 repeal, which was nearly identical to a 2009 law that passed in the Democrat-dominated House and Senate, only to be vetoed by then-Gov. M. Jodi Rell, a Republican.

“This is a tremendous, tremendous accomplishment,” Gavin said.

The Connecticut Network to Abolish the Death Penalty also praised the ruling. Ridgefield Police Commissioner George Kain, a member of the network, said that the state will be able to save the time and trouble needed to obtain drugs for use in lethal injections.

“From the perspective of law enforcement,” Kain said, “this ruling eliminates the distraction of the death penalty, allowing us to focus on measures that actual reduce crime.”

In recent years, the respected Quinnipiac University Poll has found solid but declining state support for the death penalty. An April, 2012 poll found voters supported executions 62 percent to 30 percent. By May, 2014, the support dropped to 58-36, higher than national levels. Nationally the Quinnipiac Poll found 43 percent favored death penalty and 48 percent favored life without the possibility of release.

“This is a solemn day in Connecticut,” said Gov. Dannel P. Malloy, a former criminal prosecutor said. “We have to keep in our minds how difficult it is for victims and victims’ families.”

He recalled that families of murdered state residents have taken both sides in the debate over capital punishment.

“I think that the court looked at a lot of facts, not the least of which was that in 50 years, the only people that had been put to death in Connecticut were two gentlemen who volunteered for it.”

Prior to Ross’s death, the previous execution was in 1960, when Joseph “Mad Dog” Taborsky was executed after a string of liquor store robberies and murders.