What Will Justice Robinson Do In Peeler? (Or Is The Death Penalty Really Dead In Connecticut?)

When the Connecticut Supreme Court issued its recent 4-3 decision in State v. Santiago striking down the death penalty in Connecticut, most people thought that was the end of the story–whether they agreed with the decision or not.

I’m not so sure.

The Supreme Court has yet to release its decision in State v. Peeler, a capital felony case that, like Santiago, also raised the question whether executing an individual already on death row was unconstitutional in light of the General Assembly’s enactment of Public Act 12-5. That act repealed the death penalty prospectively, while leaving it in place for the eight men on death row. A closely divided Supreme Court held in Santiago that the legal effect of the new statute was to render executing any of those men “cruel and unusual punishment,” and thus unconstitutional under the state constitution.

After the Supreme Court released its decision in Santiago, the Office of the Chief State’s Attorney asked the Supreme Court to reconsider that decision and also asked for reargument in Peeler. It is possible, but unlikely in my opinion, that the justices who decided Santiago will grant the state’s motion for reargument in that case. It is hard to imagine them changing their minds after deciding a case of such magnitude.

But what about the state’s motion in the Peeler case? Doesn’t logic dictate that it suffer the same anticipated fate as the motion in Santiago? The answer would be “yes” if the same justices who were in the majority in Santiago were on the panel that heard Peeler. But here’s the rub: the panels are not the same.

Justice Flemming Norcott, Jr., a justice whose vote was key to the majority’s decision in Santiago, turned 70 before Peeler was argued, which is the mandatory retirement age for judges in Connecticut. Justice Richard A. Robinson, who took Justice Norcott’s seat on the court, was on the Peeler panel. The remaining six justices on that panel also heard the Santiago case. Three of those six justices–Chief Justice Rogers and Justices Zarella and Espinosa–dissented in Santiago. That means Justice Robinson is the swing vote in Peeler: He could vote with Justices Palmer, Eveleigh and McDonald, who were in the majority in Santiago, and reaffirm that decision. Or he could vote with Rogers, Zarella and Espinosa and effectively overrule Santiago, which would revive the death penalty for the men currently on death row.

I have no idea how Justice Robinson will vote in Peeler. Whatever his feelings about the Santiago decision, he may believe that respect for precedent, stare decisis, counsels in favor of reaffirming that decision. Or he may feel that overruling the decision, however legally flawed he thinks it may be, would simply be too traumatic for the Land of Steady Habits. But, it is also possible that he believes the majority decision in Santiago was not only wrong, but a judicial finger in the eye of the General Assembly, which made a difficult compromise when it passed Public Act 12-5. (See my earlier posts on this issue.)

For what its worth, I note that Justice Robinson dissented from the Supreme Court’s decision on Monday recognizing a new common law tort claim for loss of parental consortium. The dissenting justices argued that it was for the legislature, not the court, to create new tort claims. Only time will tell whether Justice Robinson believes the same judicial deference to the legislature is justified when the issue is prospective repeal of the death penalty, not just a tort claim.