Linda Greenhouse And Connecticut’s Death Penalty Decision

This will may be my last post concerning the Connecticut Supreme Court’s 4-3 decision last week in State v. Santiago abolishing the death penalty entirely.  As a death penalty opponent, I should be pleased with the result.  As a lawyer who cares deeply about the rule of law, I have very serious doubts about the reasoning behind the majority’s decision.

Linda Greenhouse, one of the great legal journalists of our time, wrote a piece for the New York Times the other day lauding the decision.  This post addresses the opening paragraphs of her article, which set forth a proposition that I think is just plain wrong.  Illuminating the falsity of that proposition will help readers understand some of the problems I have with the Santiago decision.  Greenhouse writes:

The Connecticut Supreme Court could have taken an easy route to finding the state’s death penalty unconstitutional in the decision it issued last week. The State Legislature repealed the death penalty in 2012, but it made the repeal prospective, leaving 11 men on death row. The reason for the prospective-only repeal was obvious to all: Two of the death-row inmates, Joshua Komisarjevsky and Steven Hayes, had committed a horrific home-invasion triple murder that shocked the state in 2007, and the prospect of barring their execution was unpalatable to Connecticut politicians and many members of the public.

As a matter of constitutional doctrine, the State Supreme Court might simply have found the distinction between those who committed murder before and after the repeal date of April 25, 2012, to be arbitrary — a violation of due process, equal protection or both. Taking the repeal law, signed by Gov. Dannel P. Malloy, to embody the collective judgment of the people’s elected representatives that capital punishment is no longer an appropriate tool of criminal justice in Connecticut, on what basis could the state apply the death penalty to one class of murderers and spare another, with the two groups separated only by the date of offense?

Let’s assume for the moment that Greenhouse is correct when she says that applying the death penalty to people who committed capital felonies before date X, but not to those who commit the same felonies after date X, is arbitrary and violates the constitutional right to due process and/or equal protection.  (The validity of that assumption as a matter of law is questionable, although it may seem obvious to a general audience.  There are many instances in which legislatures have reduced, on a prospective basis only, the sentence for particular crimes.  Yet the law is clear that persons already convicted of such crimes before the effective date of the new law remain subject to the law (and the sentence) in effect when they committed the crimes.)

Anyway, assuming that the law repealing the death penalty prospectively is arbitrary, then what?  The inference Greenhouse appears to want her readers to draw is that if the repeal statute is unconstitutionally arbitrary, it follows that the death penalty can no longer be imposed on anyone anymore in Connecticut.  She seems to be saying that the part of the law repealing the death penalty is constitutional, but the part repealing it prospectively only is unconstitutional.  In other words, the Connecticut Supreme Court could have simply accepted the “good” part of the law, while rejecting the “bad” part.  It could have taken the sweet without the bitter.

This is where Greenhouse goes astray and where her “easy route” to striking down the death penalty is anything but.

When a court determines that a law is unconstitutional, the result is that the entire law is unenforceable unless the unconstitutional part of the law can be “severed” from the constitutional portions of the law.  The doctrine of severability is complicated and its precise details are beyond the scope of this post.   In the context of the death penalty case, however, the law does not support a severance argument.

It is essential to recall that the only way the proponents of the death penalty repeal statute could assemble enough votes to secure its passage was by agreeing that it would operate prospectively only.  Let’s call this the second great Connecticut Compromise (the first being the one that Roger Sherman offered at the Constitutional Convention in Philadelphia in 1787.)  The second Connecticut Compromise was the sine qua non of the death penalty repeal statute’s eventual passage.  No compromise, no repeal at all.  Under these circumstances, the “bad” part of the law cannot be severed from the “good” part.

Of the justices in the majority in the Santiago decision, only Justice Dennis Eveleigh discussed the issue of severability.  He argued in his concurring opinion that the repeal statute was severable.  Chief Justice Chase Rogers dismantled his severability analysis in her dissent.  This is not an instance where two people happen to have different opinions.  With respect, Justice Eveleigh’s severability analysis is not creditable.  Notably, none of the other justices in the majority joined in his analysis.

The lawyers involved in the Santiago case were no doubt aware that the “good” part of the repeal statute could not be severed from the “bad” part. Striking down the repeal statute in its entirety would have effectively revived the death penalty for everyone, hardly the result the lawyers wanted.  The justices in the Santiago majority, with the exception of Justice Eveleigh, appear to have understood the severability problem as well. So, the defense lawyers and the majority justices crafted a novel legal argument that allowed them to sidestep the severability issue.  The lawyers argued, and the majority held, that the part of the law repealing the death penalty, albeit just prospectively, reflected the legislature’s considered judgment that the death penalty no longer comported with “contemporary standards of decency.” That is another way of saying that the death penalty violated the state constitutional prohibition against cruel and unusual punishments.  (The majority made sure to root their decision in the state constitution, rather than the Eighth Amendment of the federal constitution, so the U.S. Supreme Court could not review their decision; it cannot review state constitutional issues.  By the way, you can search the Connecticut constitution in vain for the words “cruel and unusual.”  They are not there.  But the Supreme Court held a few years back that they are implied by the due process clause. That’s a post for another day.)  Of course, the court’s “cruel and unusual” conclusion flies in the face of the second great Connecticut Compromise, wherein legislators expressly voted to retain the death penalty for people already on death row.

I’m glad the death penalty is gone in Connecticut.  I hope it goes the way of the Dodo bird in the rest of the country soon.  But the Supreme Court’s decision in Santiago achieved a laudable goal (in my view) by playing fast and loose with the law.  I also think the decision sends a terrible message to the General Assembly.  On difficult policy issues like the death penalty, it says “no” to legislative “gradualism.”  It discourages compromise on difficult issues.

‘Nuff said.