A Death Penalty Hypothetical, Ctd.

Last week The CT Mirror ran my prior post, “A Death Penalty Hypothetical For The Connecticut Supreme Court, as an op-ed. It generated a comment from a person identified as “David Rosen.”  I assume this to be the always thoughtful attorney David Rosen from New Haven.  He makes a good point, to which I would like to respond.  Let me first restate the hypothetical I posed:

Imagine that Connecticut is a jurisdiction, like Massachusetts, in which the governor or the legislature may ask the state supreme court for advisory opinions on the constitutionality of proposed legislation.  Further imagine that the General Assembly in Connecticut has publicly debated the death penalty repeal statute and it is clear that the votes are only there for passage if the repeal is prospective only. The legislature asks the Connecticut Supreme Court to render an opinion on whether a prospective only repeal of the death penalty is constitutional.  Thus, the justices know that if they answer “no” to that question, the result will be no repeal at all, i.e., the death penalty will remain on the books, with no likelihood of repeal in the foreseeable future.

Under these circumstances, knowing full well that their decision will be the difference between a prospective repeal or no repeal at all, I bet you dollars to donuts that a majority of the justices of the Connecticut Supreme Court would have upheld the constitutionality of the prospective only repeal statute.  They would have supported the legislative compromise because half a loaf is better than no loaf at all.

I then added the following in response to readers who asked,”Dan, what’s the point of your post?”  I wrote:

I think the majority opinion is better understood as an example of highly motivated reasoning than as a fair and reasonable application of legal precedents.  It pains me to say that: as an opponent of the death penalty I should be dancing in the streets.  But as a lawyer, however, I see this case as a continuation of a deeply troubling trend in which justices of our state supreme court appear increasingly willing to depart from longstanding norms of judicial behavior and render decisions based on abstract notions of justice instead of a fair reading of the law.

Ok.  Having set forth my hypothetical, here is what David Rosen said:

Had the Court voted the other way because the legislature’s decision depended on their advisory opinion, that would have been an example of “motivated legal reasoning.” The decision was in fact made free of that motivation.

Now my response to David’s comment.  As my post accused the majority in Santiago of engaging in motivated reasoning, it is perfectly fair for David to make the statement he did. After all, what is sauce for the goose. . . .  But let’s play this out for a moment.  I take David’s point to be this: The legally correct decision of a court faced with my hypothetical, i.e., a decision based not on motivated reasoning, but on legitimate legal reasoning–would have been to opine that the proposed prospective-only legislation was unconstitutional.  Or perhaps the court could have said to the legislature, “If you pass this legislation, the resultant legal effect will be to end the death penalty in Connecticut completely, including for the 11 men on death row.  If the court had rendered either such advisory opinion, however, the proposed legislation would never have passed and Connecticut would still have the death penalty.

I think we can all agree that whatever the “legally correct” answer is to the question of the repeal statute’s validity, that answer should not change based on whether the answer was provided in response to a request for an advisory opinion or, as in Santiago, after the legislation is passed. Either the repeal legislation is constitutional or it isn’t.  What I find so offensive about the Supreme Court’s majority opinion is that the majority kept the part of the statute it liked–the repeal part–and rejected the part it didn’t like–the prospective only portion.  As I explained in another post, the majority’s legal argument for taking the sweet but leaving the bitter behind is not persuasive.  It’s a decision that says to the legislators who only supported the statute because the repeal was prospective-only–and whose votes were essential to passage of the statute–“Gotcha!”

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