Some Thoughts On Stare Decisis And Connecticut’s Recent Death Penalty Decision

In recent weeks, lawyers, the legal press in Connecticut, and this blog, have been discussing the possibility that a pending death penalty case in the Connecticut Supreme Court, State v. Peeler, could overrule the court’s recent decision in State v. Santiago. Santiago held that a statute passed in 2012, which expressly repealed the death penalty prospectively, had the unintended effect of rendering capital punishment unconstitutional under the state constitution for the 11 men already on death row. More accurately, the discussion has focused on whether the Supreme Court should use the Peeler case to overrule Santiago.

That debate necessarily entails a discussion about the principle of stare decisis. Latin for “to stand by things decided,” stare decisis is a central tenet of our legal system. Courts and judges are supposed to adhere to existing legal precedents because doing so “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” See Kimble v. Marvel Enterprises, __ U.S. __ (2015).

As applied to the ongoing death penalty debate in Connecticut, stare decisis counsels heavily in favor of respecting the Santiago decision, even if a majority of the current Supreme Court is convinced the decision is wrong. As appellate lawyer Dan Krisch remarked in a recent Connecticut Law Tribune article, reversing Santiago “could have a negative effect on the court’s moral authority.”

I concur with Dan’s observation about the potential effect of reversing Santiago. Yet the risk he identifies is one that is always present when the Supreme Court is asked to reconsider and overrule a precedent. The question that the judges on the court will have to answer for themselves is whether the arguments in favor of overruling Santiago outweigh the arguments in favor of respecting the principle of stare decisis and reaffirming the controversial decision.  See State v. Salamon,  287 Conn. 509 (2008) (“This court . . . has recognized many times that there are exceptions to the rule of stare decisis. . . . The court must weigh [the] benefits of [stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust.”)

When a legal precedent should be overturned, i.e., when an exception to the principle of stare decisis should be made, is one of the most difficult questions appellate judges confront. Oftentimes judges are hotly divided on the question. In the Citizens United decision in 2010, a bare majority of the U.S. Supreme Court overruled several recent precedents concerning campaign finance laws, a decision that the dissenting liberal justices on the court decried as a violation of stare decisis. In 2003, in Lawrence v. Texas, a bare majority of the Supreme Court overruled the court’s 1986 decision in Bowers v. Hardwick. Contrary to Bowers, Lawrence held that the protection the Due Process Clause of the Fourteenth Amendment afforded to individual liberty was broad enough to bar states from criminalizing same-sex sodomy between consenting adults. (In short, states cannot criminalize gay and lesbian sex.) Speaking for the five justices who voted to overrule Bowers, Justice Kennedy wrote, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The four dissenting conservative justices, led by Justice Scalia, decried the majority’s ruling as a violation of stare decisis.

But sometimes judges are united in their view that a particular precedent should be overruled. In 1954, in Brown v. Board of Education, the justices of the U.S. Supreme Court voted unanimously to overrule Plessy v. Ferguson, the court’s atrocious 1896 decision that held the Fourteenth Amendment permitted racial segregation under the “separate but equal” doctrine.

Of course I am not suggesting that the Santiago decision, which abolished the death penalty, is morally comparable to Plessy v. Ferguson. I am simply pointing out that there are times when exceptions must be made, and have been made, to the principle of stare decisis. The fight is always over whether the exception is justified in any given case.

Given that history, is there a principled way for judges to decide when overruling an existing precedent is justified, perhaps even required? Legal scholars occasionally attempt to articulate such principles. And when courts overrule precedents, they always attempt to justify their decision by reference to such principles. Personally, I am doubtful. My experience is that if a majority of the members of a court are of the opinion that a precedent is not only wrong, but “really wrong,” for whatever reasons, they will vote to overrule the precedent.

I do not mean to suggest that all decisions whether to overrule a particular precedent are inherently arbitrary. Rather, I mean that such decisions require judges to be judges. As Justice Harlan famously stated in his dissent in Poe v. Ullman, referring to the Supreme Court’s efforts to define the substantive contours of the Due Process Clause, “[no] formula could serve as a substitute in this area, for judgment and restraint.”

Will the Connecticut Supreme Court use Peeler to overrule Santiago? I haven’t the faintest idea. While I like the result the court reached in Santiago, I am on record stating that the legal reasoning the majority employed to get to that result is not remotely persuasive. In short, I think Santiago was not only wrongly decided, but “really wrongly” decided. But would I vote to overrule it? Right now, as I write this post, I think not. But my position changes with each tick of the clock.

UPDATE 11/9/15:  I just reviewed the supplemental briefs that the state and the Office of the Public Defender filed in the Peeler case last Friday. I find the state’s brief far more persuasive. In particular, the brief seriously undermines the “history” of the death penalty on which the majority in Santiago relied.  Again, as much I like the result in Santiago, the legal reasoning behind the decision is deeply flawed.